MCP Solicitors News
PRENUPTIAL AGREEMENTS - ARE THEY WORTH THE PAPER THEY ARE WRITTEN ON?
The answer is possibly, a typical lawyer's answer I hear you say! As with most aspects of relationship breakdown it all comes down to the facts of a particular case, but a properly and carefully crafted prenuptial agreement can make a real difference.
A prenuptial agreement is a document entered into by couples before they get married or enter into a civil partnership. It endeavours to regulate how income and assets will be dealt with in the event that the relationship breaks down irretrievably and the marriage or civil partnership is subsequently dissolved.
A prenuptial agreement can also make provision and seek to govern future events such as the arrival of children.
In this jurisdiction prenuptial agreements have historically been of doubtful benefit and the advice to clients has been that whilst there is no harm in such an agreement being drawn it is not something the court would attach any significant weight to or be bound by when exercising its discretion. However, there is a trend in favour of such agreements. There have been a series of court decisions where prenuptial agreements have made a difference.
In K v K (Ancillary Relief: Prenuptial Agreement) (2003) 1FLR 120 the prenuptial agreement in a short marriage was taken as evidence of the parties intentions and considered within the financial proceedings.
In a Court of Appeal decision of Crossley v Crossley (2008) 1FRR 1467 the court required a millionaire divorcee to show good reason why a prenuptial agreement she had entered into should not govern her divorce settlement. Mr Crossley was aged 62 and had independent fortune declared at 45 million pounds and Mrs Crossley was aged 50 and had her own fortune of 18 million pounds. Mrs Crossley had been married three times previously and Lord Justice Thorpe acknowledged that this was "a quite exceptional case on its facts but if ever there is to be a paradigm case in which the courts will look to the prenuptial agreement as not simply one of the peripheral factors in the case but as a factor of magnetic importance, it seems to me that this is just such a case".
The most recent Court of Appeal decision was delivered in July of this year in the case of Radmacher v Granatino (2009) EWCA Civ 649. Whilst it also involves the fabulously wealthy it is clearly a decision of some significance as there is a discernable change in judicial attitude to reflect the times in which we live.
Lord Justice Thorpe said "in so far as the rule that such contracts are void survives, it seems to me to be increasingly unrealistic. It reflects the laws and morals of earlier generations".
He continued in this day and age "there are many instances in which mature couples, perhaps each contemplating a second marriage, wish to regulate the future enjoyment of their assets and perhaps to protect the interests of the children of the earlier marriages upon dissolution of a second marriage. They may not unreasonably seek that clarity before making the commitment to a second marriage. Due respect for adult autonomy suggests that, subject to a course of proper safeguards, a carefully fashioned contract should be available as an alternative to the stress, anxiety and expense of a submission to the width of judicial discretion".
Although the Court gave approval, to the use of prenuptial agreements in cases where the facts were similar to that of Radmacher v Granatino, it was clear that until there is a change in the law a prenuptial agreement is not binding. The weight to be given to such an agreement still remains only one of the discretionary factors that the court will take into account, when determining a fair settlement.
If you require advice as to whether your circumstances would benefit from such an agreement or would like to know more contact Steve Welcomme or Dawn Coller
