Date 18 July 2011
Following The Supreme Court decision in Radmacher -v- Granatino it is fair to say that a properly drafted pre or post nuptial agreement is more than likely to be upheld by a divorce court. That does not mean however that it is binding on the Court. Until Government legislates to say that these agreements are binding (presumably with certain safeguards for example ensuring children are properly supported) then they are going to be capable of challenge. The key when drafting an agreement is try to ensure that when they are scrutinised down line that they are attractive to a Judge. Certain tips might be to, for example, provide full financial disclosure, make sure each party has the benefit of legal advice and to provide for the other parties needs. It would be tough to defend, for example, an agreement that gave a party nothing after a long marriage.
Are these agreements only the domain of the rich and famous? Whilst it may be inappropriate to have a pre-nuptial in all cases, the following maybe examples where they should be considered:-
- significant pre-marital assets;
- second marriage;
- business assets including a business that has been in the family for a number of years;
- inheritance or future inheritance;
- where there are children of a previous marriage.
In the absence of an agreement excluding these assets from divorce they all go in the pot and the Court then decide how to divide the same.
For further information about our family services or to discuss a particular matter or situation in more detail, contact our lawyers Marilyn Bell or Keith Docking at our St Albans office by email at marilyn.bell@salaw.com or keith.docking@salaw.com or on 01727 798066.
© SA LAW 2011
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual cases.