Nuptial Agreements
A prenuptial “revolution” occurred in England and Wales in 2010 following the leading case of Radmacher v Granatino. Since then our highly experienced team of family law experts has been at the cutting edge of drafting and negotiating “prenups” and “postnups”.
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While nuptial agreements primarily serve the purpose of safeguarding wealth, we approach our work with an openness to learning from our clients and offer a distinct blend of human insight.
Those seeking advice on nuptial agreements often share a common desire for stability in an unpredictable world. Our clientele typically includes young professional couples embarking on their journey together, as well as individuals in later stages of life who, either independently or with the guidance of various stakeholders, aim to mitigate potential conflicts in case of a marriage breakdown or secure assets for their children.
Drafting a nuptial agreement extends beyond legalities. These agreements frequently involve discussions with extended family members, necessitating conversations about inheritance and family trusts. Negotiations require tact and diplomacy, and we will guide you through the process with a pragmatic yet emotionally sensitive approach. Additionally, our Private Client team can offer advice on the tax and inheritance implications of your agreement and can assist in creating a Will that aligns with the terms of the nuptial agreement.
The current legal status of nuptial agreements
It is important to note that nuptial agreements are not currently legally binding in England and Wales. This means that by entering into nuptial agreement, you cannot override the court’s ability to decide how your finances should be divided on a divorce. However, when considering an application for financial remedy, the court must give appropriate weight to a nuptial agreement as a relevant factor or circumstance of the case. The law relating to post-nuptial agreements has developed following the Supreme Court decision in Radmacher v Granatino in October 2010. The key points of the current law are summarised as follows:
- When considering the role of a nuptial agreement in a financial claim on divorce, the starting point is the relevant legislation, which is the Matrimonial Causes Act 1973. Section 25 of that Act obliges a judge to consider all the relevant circumstances of the case when deciding how to divide the parties' finances on a divorce.
- No agreement between the parties can override the legislation or prevent the judge from deciding on the appropriate division of assets on a divorce. This means nuptial agreement cannot stop a spouse applying to the court for financial provision from the other spouse. Any "waiver" of the right to apply to the court for financial provision in an agreement will not be effective.
- The significance of a nuptial agreement is as a relevant circumstance of the case, to be weighed by the judge. A nuptial agreement will likely have a substantial impact on the judge's decision in many cases. The Supreme Court said in Radmacher v Granatino that the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances it would not be fair to hold the parties to their agreement.
You should never enter into a nuptial agreement thinking that it will not be enforceable. The agreement is more likely than not to be upheld in circumstances where:
- Both parties receive independent legal advice before entering the agreement
- Both parties complete full and frank financial disclosure before entering the agreement
- The terms of the agreement produce a fair outcome
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