I'll love you until the end of time and please sign this pre-nup

Although not legally binding in UK courts, the Supreme Court holds that significant weight should be given to nuptial agreements, providing certain conditions are met.

Historically nuptial agreements were not valid in the UK and they were contractually void on grounds of public policy. However, in 2010 the case of Radmacher v Granatino changed the Court’s thinking in relation to pre and post nuptial agreements. A pre-nuptial agreement (pre-nup) is an agreement entered into before parties marry or enter a civil partnership, to establish ownership of financial assets, property and how they intend to divide these in the event of a divorce. A post-nuptial agreement allows for the same financial planning, but they are entered into after the parties’ marriage.

In Radmacher v Granatino the parties entered a pre-nup. The wife was very wealthy and the husband was a banker who earned a good wage, however he changed career paths and decided to study at Oxford university which saw his salary decrease significantly. The terms of the agreement stated that each party were to independently manage their assets. The parties did not take any legal advice, nor did they undergo any financial disclosure, though the husband was aware of his wife’s wealth. Furthermore, the agreement was in German and drawn up by a German notary. Due to the parties rushing to sign the agreement ahead of the wedding, the husband, a French national, had the terms of the agreement explained to him in English, as there was no time for them to obtain a translation into French.

When the couple divorced, the High Court held that the agreement was unfair due to the fact that no legal advice had been sought, the pre-nup was one-sided and prepared in that vein. Furthermore, there was no provision for the parties’ two children. The Court therefore ignored the pre-nup agreement and awarded the husband £5.6million.

The wife appealed this decision, and the case was ultimately heard by the Supreme Court, whereby it was held that it was not unfair to hold the husband to the terms of the agreement despite the circumstances. The Supreme Court held that significant weight should be given to nuptial agreements, provided the following conditions are met:

• They are freely entered into, without undue influence.
• The parties fully understand the implications of the agreement. 
• It is fair to hold the parties to the agreement considering the circumstances.

The Court also stated that in addition to the above, the agreement should not be signed less than 28 days before the wedding and independent legal advice is essential. Financial disclosure should also take place, so that each party is aware of the other’s financial position, which can fully inform the drafting of the prenup. Of course, these agreements cannot completely oust the jurisdiction of the Court, so if one party’s needs are not properly accounted for, whilst the other party’s needs have been comfortably provided for, the agreement will not be upheld and the Court will make an order it considers appropriate given the circumstances. 

Nuptial agreements are not legally binding on the UK courts, especially when applying the section 25 factors under the Matrimonial Causes Act 1973; however, significant weight will be attached to pre-nuptial agreements and the court will uphold the agreement, provided it has been freely entered into by the parties, having regard to its full implications, unless it would be unfair to do so.

It is imperative that legal advice be sought on the agreement as the same must be certified by each party’s lawyer, to ensure that it can be upheld by the court.

Written by: Megan Porter (Trainee Solicitor)

For any enquiries about nuptial agreements please contact a member of the Family team on 020 8290 0333 or email info@judge-priestley.co.uk.