RADMACHER

What is Radmacher and what does it mean?

What is it?

Radmacher v Granatino, a case heard in the Supreme Court (formally The House of Lords) relating to pre nuptial agreements has changed the English Law’s perception of pre nuptial agreements and made them more likely to be enforceable. The law should apply equally to marriages and civil partnerships.

What was the Law and What is it Now?

The law prior to October 2010 was that pre nuptial agreements were persuasive as to the parties’ intentions and should be taken into account in divorce proceedings but no further.

The law now is “the Court should give effect to a pre 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”.

What does this mean?

That in divorce proceedings pre nuptial agreements may be presumed to be enforceable but there are likely to be a large number of exceptions.

Pre nuptial agreements should be effective in protecting inherited wealth and gifts and assets accumulated before the marriage. International families with non English pre nuptial agreements should be more comfortable that their agreement may be upheld by an English court. Pre nuptials are more likely to be upheld when the marriage is short or in second marriages between older people.

When you are making pre nuptial agreements you should always remember that the court will give the first consideration to any child in the family and awards can still be made to help provide for children. These awards are unlikely except in exceptional circumstances to survive beyond full time education.

In order to be effective at all, any pre nuptial agreement cannot be made under any duress, should result from independent legal advice and full financial disclosure unless that has been waived and must be concluded at least 3 weeks before the wedding.

Conclusion

If either of the partners of the marriage or civil partnership are looking for certainty they should not only enter into a pre nuptial agreement but also a post nuptial agreement which probably has even a greater chance of being enforced.

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