Pre-Nuptial & Post-Nuptial Agreements

There are two types of agreements

  • A Pre-nuptial agreement is an agreement that is entered into before marriage, detailing how assets will be divided if the marriage breaks down.
  • A Post-nuptial agreement is entered into after marriage, while a couple are still together and allows a couple to plan financially should their marriage breakdown. Civil partners can have a similar agreement.

Following the land mark decision by the Supreme Court in Radmacher v Granatino in Oct 2010, in appropriate cases, the court can attach some weight, even decisive weight, to a Pre-nuptial agreement. In this case Katrin Radmacher, a German national and her French ex-husband, Nicolas Granatino, 38, had signed a prenuptial agreement before their wedding in London in 1998. The agreement stipulated that neither party would benefit financially if the marriage ended. When the parties separated in October 2006 Mr Granatino applied to the court to look at all financial matters, asking that the Agreement be disregarded. On Appeal, the Supreme Court found in favour of the wife Ms Radmacher. Lord Justice Thorpe stating “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”.

In terms of defining ‘fairness’, the Supreme Court has suggested that if the parties’ needs are met and financial sacrifices have been compensated for in the agreement then there should be no requirement to depart from the agreement.

The Supreme Court decided that if a pre-nuptial agreement is to carry full weight, both parties have to have entered it of their own free will, without undue influence or pressure, and they had to have been informed of its implications. Therefore, there must have been disclosure, information or advice.

The pre-nuptial agreement could not be allowed to prejudice the reasonable needs of the children.

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