Jane Staff summarises the law on marital pre-nuptual agreements and the recent case of Radmacher heard in the Supreme Court. This article is further to the News item posted in June 2010.
In contrast with other jurisdictions, most notably the USA, pre – nuptual agreements have never really been very popular in England and Wales by reason of the doubts which surround their validity. A pre – nuptual agreement is a contract between engaged couples intending to marry or enter into a civil partnership, which sets out the division of assets in the event of the failure of the marriage/civil partnership.
“The problems have centred on the risks of one party exerting undue influence over the other, how a change of circumstance, (such as the birth of children) should be provided for and the fact that the courts are reluctant to have their jurisdiction ousted when the needs of a vulnerable spouse or vulnerable child are at risk”, said Mrs Staff.
However, the recent case of Radmacher may have changed the law on these issues. The Supreme Court decided by a majority of eight to one that a court should give effect to a pre-nuptual agreement freely entered into by the parties with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.
Adds Mrs Staff, “As a result there may now be scope in some cases for engaged couples to consider a pre-nuptual agreement provided there is a full disclosure of assets and neither party is exerting wrongful influence over the other.”