It is not currently possible under English law to make a binding prenuptial agreement which cannot be interfered with by the court as prenuptial agreements are not legally binding in England and Wales. The court retains its discretionary powers to redistribute a couple’s income and capital resources on divorce taking account of “all the circumstances of the case” (of which the Prenuptial Agreement will be one) so as to achieve fairness between the couple. The weight to be attached to the agreement will depend on all of the circumstances of the case.
However, over a period of about 15 years - culminating in the very important decision of the Supreme Court in Radmacher v Granatino in 2010 - the courts have moved from a position of distrust (if not overt hostility) towards prenuptial agreements to one of support for the parties’ autonomy and ability to make their own agreements in order to avoid the emotional distress, uncertainty and substantial legal costs associated with court proceedings following the breakdown of a marriage. Over this period the court’s approach has moved from suspicion to one where agreements are to be treated with respect.
The main point of principle, established by the Supreme Court decision in Radmacher v Granatino in 2010, is that:-
“The court should give effect to a nuptial agreement 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 the agreement.”
There is now effectively a rebuttable presumption that a prenuptial agreement (and any other type of marital agreement) freely entered into by both the couple with full understanding will be upheld, unless it would be unfair to hold them to it at the time of the breakdown of the marriage.
There is no distinction in terms of application of the law between a pre- and post-nuptial agreement.
The Supreme Court judgment represented a significant development in the law. However, prenuptial agreements remain strictly unenforceable in the absence of legislation. A properly drafted prenuptial agreement, observing accepted good practice, will provide a large measure of protection to the economically stronger spouse against a claim by the economically weaker spouse to share the assets of the marriage and could be totally effective upon the breakdown of their marriage.
What is clear from the decision in Radmacher and subsequent court decisions is that it will not usually be possible to deprive the economically weaker spouse of her needs and probably also compensation for financial disadvantage generated by the way in which the couple arranged their finances during the marriage. The English Court is only likely to uphold a prenuptial agreement in its totality in the bigger money cases, not cases involving modest wealth, where needs are likely to be the determining factor to the outcome of the case.
If you are considering entering into a prenuptial agreement, we provide free initial legal advice by telephone or e-mail. We assess your requirements and provide initial advice about how a prenuptial agreement could work in your particular circumstances, at no cost to you and without any obligation for you to instruct us formally to act. If you do then decide to instruct us formally, we will invite you to attend a meeting. After that meeting, we will provide you with an estimate of what the cost of your prenuptial agreement is likely to be.