Divorce and pre-nups

An important legal ruling has given new weight to pre-nuptial agreements.

Many European countries and the USA do recognise and enforce such agreements whereas in the UK they have not been binding on the court and have just been one of the factors the court takes into account when deciding what order to make on the breakdown of a marriage.

Now the UK’s Supreme Court has given made it clear that in many cases pre-nuptial agreements will be upheld by the court provided they have been freely entered into.

The Supreme Court case arose following the divorce of Katrin Radmacher and Nicolas Granatino. Mr Granatino had agreed not to make a claim on his wife’s fortune if they divorced, but was awarded £5.85 million by a High Court judge in 2008.

Ms Radmacher challenged the decision, and the Court of Appeal significantly reduced the payment due to Mr Granatino, placing far greater emphasis on the terms of the pre-nuptial agreement. The Supreme Court agreed that the pre-nuptial agreement should be binding in this case.

The decision paves the way for more weight to be given to pre-nuptial agreements in future.

Pre-nuptial agreements are not exactly romantic, but more couples, particularly those who have been married before and those with significant assets, are turning to them to ensure fairness in the event of the breakdown of a marriage.

While couples should be aware of the benefits of a pre-nuptial agreement, it remains the case that they will be carefully scrutinised by the courts and will not automatically be binding.

There are still a significant number of situations where the agreements would not be binding, even following this new decision. For example, if the couple has children, the needs of those children will be prioritised.

Couples considering a pre-nuptial agreement should seek legal advice at an early stage. It is crucial to seek specialist advice about the likely benefits of such an agreement in each case and to ensure that the potential pitfalls in drafting the agreement are avoided.

Simon Gledhill
Head of Family
Napthens solicitors