Not long before midnight a young couple on the Thames Embankment got engaged. A spectacular fireworks display followed. This was not in honour of their engagement but to celebrate the start of 2011. I hope the couple have a long and happy marriage. Unfortunately, many who do make the commitment to marry end up divorcing. According to Resolution’s paper on “Family Arrangements” approximately 45% of marriages will end in divorce.    

Separation and divorce can be extremely distressing and even traumatic for those involved. Conflict over the distribution of financial assets can be costly, time consuming and very stressful.  

Presumably unlike the couple who got engaged on the Embankment on New Year’s Eve, many couples are now getting married for the second or third time or after previous long term relationships.   Many will have accumulated significant assets which they would not want to lose should their proposed marriage end in divorce. In these circumstances, consideration should be given to entering into a Pre-Nuptial, even a Post-Nuptial agreement.

The widely reported landmark case of Radmacher (formerly Granatino) v Granatino [2010] UKSC42 does not make Pre-Nuptial agreements dealing with parties financial affairs automatically legally binding on divorce. Nevertheless, it means that far greater weight should be given to them in court proceedings and many more are likely to be upheld.

The overriding principle on dealing with financial court proceedings on divorce is that of fairness. This has been firmly established by the cases of White v White and Miller v Miller. The question of fairness is determined by the consideration of need, compensation and sharing. The case of Radmacher confirms that if a Pre-Nuptial agreement deals with these issues in a way that the Court may have adopted without the parties having entered into such an agreement, there is no difficulty in giving effect to the agreement. The obvious difficulty arises where the Pre-Nuptial agreement makes provisions that the Court would otherwise consider to be unfair. Significantly, however, the Judgment in Radmacher states that “the fact of the agreement is capable of altering what is fair”. The Supreme Court of Justices propose that in the case of both Pre-Nuptial and Post-Nuptial agreements that “the Court should give effect to a Nuptial agreement [Pre-Nuptial and Post-Nuptial] that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

In 1998 the government were considering whether couples either before or during their marriage should be able to make written agreements dealing with their financial affairs which would be legally binding on divorce.   The government proposed that any such agreement should not be legally binding in the following circumstances:- 

1. Where there is a child of the family
2. Whether under the general law of contract, the agreement is unenforceable.
3. Whether one or both the couple did not receive independent legal advice before entering into the agreement
4. Where the Court considers that the enforcement of the agreement would cause significant injustice
5. Where one or both of the couple have failed to give disclosure of assets and property before the agreement was made
6. Where the agreement is made fewer than 21 days prior to the marriage

Katrina Radmacher is a German Heiress. Her former husband Nicolas Granatino is French and was a successful banker who changed his career to be a researcher at Oxford University.

The terms of the parties’ Pre-Nuptial Agreement prevented either making a claim against the other’s property during the marriage or on its end, and did now allow either party to claim maintenance from the other on divorce. Mr Granatino did not wish to abide by the terms of the Pre-Nuptial Agreement and so applied to the Court for financial relief. The case ultimately went to the Supreme Court which concluded that it was fair for Mr Granatino to be held to the pre-nuptial agreement and that it would be unfair to depart from it. This was despite the fact that Mr Granatino had not obtained independent legal advice on the agreement, and that there had not been a disclosure of Katrina Radmacher’s assets prior to signing of the Pre-Nuptial Agreement. The ruling states …..”if it is clear that a party is fully aware of the implications of a anti-Nuptial Agreement [Pre-Nuptial agreement] and indifferent to detailed particulars of the other party’s assets, there is no need to record the agreement reduces weight because he or she is unaware of those particulars. What is important is that each party should have all the information that is material to his or her decision and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.”

Clearly, the heiresses of this world have more reason than most to enter into Pre-Nuptial agreements.   However, with more people entering into marriages with their own significant assets which they are likely to want to protect a properly drawn up legal Pre-Nuptial agreement is now more of an investment than ever before. Pre-Nuptial agreements may become legally binding in this Country within the next few years. In the meantime, obtaining a Pre-Nuptial or Post-Nuptial agreement is the best way to protect personal assets and to attempt to determine financial affairs on divorce.

It is better to obtain independent legal advice and disclosure of financial assets as to do so will ensure that each party understands the implications of the agreement and thus this will give greater weight to the agreement itself should either party subsequently issue court proceedings because they do not want to be held to the agreement.

For more information on making a Pre-Nuptial or Post-Nuptial agreements contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it