The family team of Samantha Jago and Julian McEvoy have been closely watching the developments in the landmark case of Radmacher v Granatino, which was reported towards the end of October. Julian McEvoy comments:
"I am intrigued by the way in which the press, over a number of years, have used quite emphatic but misleading language about prenuptial agreements to the effect that they are illegal in this country. They are by no means illegal, and never have been. The difficulty is that the Courts may simply declare them to be unenforceable if the agreement is unfair.
It appears to me that prenups are treated as somewhat exotic in English law, they are allowed on the continent, but not here, and that probably explains why they have been treated as oddities in the popular press.
The case of Radmacher is of particular interest as it enforced the Prenuptial Agreement entered into by the parties. This appears to be a positive step towards stating that if you enter a Prenuptial Agreement then there is every chance you will be bound by it.
I will be interested to read this judgment in detail but for the time being let us keep our feet on the ground. There are two points to remember from this case:-
- For a Prenuptial Agreement to be upheld, it has to pass some stringent tests of fairness, which include informed legal advice and full and frank disclosure of all relevant assets on both sides. Neither party should be put under pressure to enter into the agreement. There is nothing particularly new or remarkable about these concepts.
- How many people will this affect? Well, a lot of commentators suggest that it will only affect a few of the wealthier individuals in the country, but my feeling and experience is that there are a lot of people whose financial circumstances are more mundane, but who nevertheless have particular concerns.
For example, many individuals are keen to protect very specific items, such as family assets that have been inherited or built up over more than one generation, such as an interest in a family business. A good and well thought out Prenuptial Agreement will immediately make sense to the reader - it will be understandable why one party or the other wishes to preserve assets, and it will be apparent that the agreement is considered fair and reasonable at the time that it was made. Thus the Prenuptial Agreement has changed from being of interest to protecting the super rich and now looks more likely to provide protection for the everyday couple.
Personally, therefore, I welcome the decision in Radmacher v Granatino and the fact that prenups may become a more commonplace and a more useful part of English family law. The Courts are giving us access to a tool which should not be overlooked in appropriate cases."
Samantha and Julian also take this opportunity to remind the reader of the use of Post Nuptial Agreements. These are agreements entered into by the parties after marriage. The case of MacLeod held that the parties were bound by this agreement. It therefore appears that the Court is leaning towards binding people to the decisions they make when happy in their relationship.
If you would like to investigate a prenup or postnup please contact our family law team, Samantha Jago and Julian McEvoy on 01483 302000 or email samantha.jago@www.rhw.co.uk or julian.mcevoy@www.rhw.co.uk.