If your Valentine’s Day was a romantic event and you are now planning a wedding you may also need to consider a pre-nuptial agreement to plan for financial arrangements should your marriage breakdown. Whilst this might not capture the romance of the moment it will save expense and animosity should it be needed in years to come.
The law in England and Wales has not yet reached the same stage as America, and whilst newspaper headlines can capture examples of pre-nuptial agreements (think Tiger Woods who signed a pre nuptial agreement and still ended up paying his wife $750milllion as he cheated on her, or Madonna who didn’t have one and had to pay Guy Ritchie a large lump sum). Here the Courts do not find them completely legally binding and the Courts retain ultimate jurisdiction.
In 2010, the Courts were asked to consider this in detail in a case called Radmacher -v- Granatino, where the Wife had the wealth arising from family assets totaling in excess of $54 million. After this case the Court held that there were certain principles which could lead to nuptial agreements having great weight and as such have an impact in the decision of the Court. The Court said they should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implication unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.
This has lead to three strands to consider whether a nuptial agreement should be given weight in resolving division of finances:
1 – the parties had full disclosure of each others financial details
2 – the parties went into the agreement freely
3 – it would be unfair to rely upon the nuptial agreement
The Courts continue to hold overall decision making powers as there will be certain events that would not/could not have been foreseen. For example, if there have been children of the marriage since the agreement, the Court are likely to hold that the parties can no longer rely upon the agreement. If the marriage has been a long marriage and the financial position of the parties has changed considerably during the marriage, the Court are likely to say that the agreement no longer holds any weight to decide how to divide the assets.