On October 21st 2010, the Supreme Court made legal history when, after a furious legal battle in the case of Radmacher v Granatino, they upheld a Pre-nuptial agreement between Katrin Radmacher and Nicolas Granatino. Unlike the rest of Europe, the courts ofEngland andWales have previously attached little weight to these agreements. This may, however, be about to change, as supreme recognition of the Pre-Nuptial Agreement is likely to spur a surge in the number of people entering into such agreements and potentially radicalise the way divorce law is commonly conducted.
Entering into a Pre-Nuptial Agreement enables a couple to set out in very clear terms how they wish their assets to be distributed should the unimaginable happen and the couple’s marriage/Civil Partnership is dissolved. Couples can therefore agree how any assets acquired before the marriage will be dealt with as well as any assets jointly acquired by the couple during the marriage, which may be dealt with differently.
Before they married, the couple in the case in point entered into an agreement, which stipulated that the other would not benefit from any break down in their relationship. But, upon separating, Mr Granatino disregarded the agreement and sought to strike a deal with Miss Radmacher, who, in turn, fought to enforce the terms of the agreement. To her dismay, Miss Radmacher was advised that the agreement was not legally binding and there ensued a costly and laborious legal battle, which resulted in the Supreme Court overturning the lower courts decision to set aside the agreement and awarding a sum closer to that outlined in the agreement.
Contrary to suggestions made in recent media coverage, the concept of a Pre-Nuptial Agreement has existed for several hundred years. Although historically known as a Marriage Settlement, women commonly used these agreements in the 18th Century as a way to protect their property rights during a time when they were prevented from owning property in their own right following marriage.
However, in more recent times, Judges in England and Wales were not required to take the contents of any such agreements into account when considering a divorce settlement. This meant that any financial Orders made might have grossly contradicted the intentions of the parties when they entered into the marriage. By contrast, Judges will now need to give them “decisive weight” and provided it is fair, it will be binding.
Although the practice of entering into Pre-Nuptial Agreements is commonplace in continental Europe, in England and Wales, they are traditionally associated with the very rich and are generally considered to be unromantic and a slur on the institution of marriage.
There is, however, no evidence to support the view that those countries where Pre-Nuptial Agreements are widely used value the institution of marriage any less than we do in England in Wales. Furthermore, it is arguable that rather than being unromantic, entering into an agreement is testamentary of your love as opposed to being motivated by money.
Author – Amelia Sussex