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The Eric Whitehead Partnership

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PRE-NUPTIAL AGREEMENTS GIVEN THE GREEN LIGHT

A recent Supreme Court ruling now means that Pre-nuptial agreements – agreements which set out a couple’s divorce settlement before they have even married – will have full legal status in England for the first time in history.

Pre-nuptial agreements have long held great influence in the American divorce courts as well as courts in European countries such as France and Germany.  However, until now, such agreements were only one of the factors that the English divorce courts would consider when dividing up the matrimonial assets upon divorce.

However, in the case of Radmacher v Granatino, some of the country’s most senior Law Lords have held that Pre-nuptial agreements now have “decisive or compelling weight” in Ancillary Relief (ie divorce finances) proceedings.  The Supreme Court said that the principle to be applied is that the divorce courts should give effect to a Pre-nuptial agreement provided that it is freely entered into by each party and that both parties have a full appreciation of its implications and consequences.  Only manifestly unfair Pre-nuptial agreements will be overturned by the divorce courts.

The ruling is not without controversy.  One Supreme Court Justice, Baroness Hale of Richmond, did not agree with the ruling, referring to it as being “inconsistent with the continued importance attached to the status of marriage in English law.”

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