Will a Pre-Nup Protect Me If I Get Divorced? 

Pre-nuptial agreements are not binding (yet) on English courts. There is still the ability for either party to apply to the court for financial remedies (financial orders) following divorce. However, the courts must consider a number of specified factors set out in statute when they decide upon financial claims. There is also a ‘catch all’ provision for the court to also consider ‘all the circumstances of the case’ and thus a nuptial agreement is one factor that must be brought into account. Courts appear to be giving more and more weight to nuptial agreements and there has been a succession of cases whereby the courts have upheld them wholly or in part.

The leading case is still Radmacher v Granatino (Radmacher) which was decided at Supreme Court level and judgment given in October 2010.

The court in Radmacher basically said:

“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 their agreement.”

Emerging case law (and a more recent Law Commission Consultation Paper) have followed the trend set by Radmacher and, at present, a judge in England is likely to uphold any nuptial agreement if:

It is impossible to know at this stage, but some of the reforms proposed by the Law Commission may become law in due course. Therefore, despite the current discretion, both parties must be fully prepared for the agreement to be upheld since this any reforms may apply to existing agreements that meet the criteria.

Pre-nuptial agreements remain popular as the best way to try to protect pre-marital wealth and/or provide an agreed framework for financial matters on relationship breakdown to simplify matters in the future if the worst is to happen.

While they can seem a tricky subject to raise, they are now becoming commonplace and the timing requirement, to be signed 28 days before the wedding, means it is important to start thinking of them in good time.

If you would like more information on nuptial agreements, please call a member of our Family & Divorce team on 020 7228 0017, who would be happy to assist.