Pre-nuptial agreements get the go-ahead
If you are thinking of tying the knot you may also be thinking of a pre-nuptial agreement (or pre-registration agreement for civil partners). This is a formal written agreement between you and your partner, setting out who will own what when you are married, and, usually, attempting to set out what will happen if you come to divorce or separate.
Whilst they are the norm, and regularly enforced as binding in many countries outside the UK, the courts in England and Wales have held such agreements as persuasive only and not binding on the parties. As recently as 2008 (in MacLeod v. Macleod) the most senior judges confirmed that while pre-nuptial agreements may be taken into consideration by the English courts, they are not enforceable.
Recently though, pre-nuptial agreements have hit the headlines again with the case of Radmacher (formerly Granatino) v. Granatino. Katrin Radmacher (39) and Nicolas Granatino (37) were married for 8 years before they separated and had two children together. Miss Radmacher came from a very wealthy German family and has a personal fortune of around £100 million. Although previously a banker working for JP Morgan (and earning over £300,000 a year) towards the end of their time together, Nicolas Granatino had begun a doctorate at Oxford and was only earning 10% of his former salary by time the couple separated.
Before getting married, the couple had entered into a pre-nuptial agreement that simply provided that they should each go their separate ways on divorce. Despite this, Nicolas Granatino was awarded £5.85 million for his own use by a judge in the High Court. Miss Radmacher appealed.
In their decision, the judges in the Court of Appeal gave the strongest indication possible that pre-nuptial agreements will be treated as binding, save in the most unusual circumstances or where there are very compelling reasons to disregard them. However the judges still felt that Mr. Granatino should receive something. The effect of their decision was to slash Mr. Granatino’s award to £1m plus a loan of £2.25m for accommodation.
The decision is seen as a huge shift from the English court's earlier approach. Now those trying to extricate themselves from a pre-nuptial agreement have to show that it should be disregarded. However, the courts still retain the power to ignore or vary these agreements and until Parliament formally legislates (by 2012 the Law Commission has said it will draw up a draft parliamentary bill) pre-nuptial agreements retain an uncertain status. Mr. Granatino is also expected to seek leave to appeal to the House of Lords.
The judges had some concerns that the agreement could be defective in that Mr. Granatino had not had independent legal advice and there had not been full disclosure of assets. It is therefore imperative when entering into an agreement of this type that certain minimum safeguards are put in place and expert legal advice is obtained to give your agreement the best possible chance of success in this country.
For further information and professional advice on this and other matrimonial matters, please contact: -
This publication provides general information and does not constitute legal advice. Copyright in the content of this publication is owned by Woolley Bevis Diplock LLP. It is believed to be correct as at 21 July 2009 but is subject to change. To be sure you have the most up to date information, please contact us.
back | home | contact us | legal stuff