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June 2010 – Pre-Nuptual Agreements

Jane Staff reviews Pre-Nuptial Agreements

It is well recognised that, in the Law of England and Wales, prenuptial agreements are not binding or enforceable like they are in many other European countries or as they are in the United States of America.

A Prenuptial Agreement is an agreement entered into by a couple before their marriage or their civil partnership to settle how their finances will be divided when and if the relationship breaks down.

When a couple divorce or bring to an end a civil partnership in England and Wales the Court has to take into consideration when deciding a financial settlement all the circumstances of the case.

In the recent case of Radmacher v- Grenatino the wife was originally from Germany from a very wealthy family. The husband was from France and also from a wealthy family. Before the husband and wife married they signed a prenuptial agreement in Germany saying that neither of them would make a financial claim against the other in the event of a divorce.

When they divorced the husband asked for a financial settlement from the wife despite the prenuptial agreement. Under the Law in England and Wales, the prenuptial agreement cannot be said to be binding and enforceable.

However, the Court has to consider all the circumstances of the case and in the Court of Appeal, the Judges indicated that decisive weight should be given to such an agreement when considering all the circumstances. Lord Justice Thorpe indicated that it is increasingly unrealistic not to recognise the rights of adults to enter into agreements governing their future financial relationship although any agreement is subject to the review of the Court in the event that it was manifestly unfair.

The case of Radmacher v- Grenatino is due to be heard by the Supreme Court and the result is awaited to see if it will bring any more certainty and clarity to the status of prenuptial agreements in England and Wales.

In 2012 the Law Commission will also report on the enforceability of premarital agreements.

This is an area on which the Law is not at present entirely certain. However, given the view of the Judges in cases such as this one couple may wish to enter into a prenuptial agreement to try and bring some certainty in the event that the relationship fails.

At Salmons Solicitors, we are able to provide advice on prenuptial agreements and are always happy to do so.

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