Pre-nup in haste repent at leisure

Mark Mosley Partner and Head of Family Law at Vincents comments: "You should be looking forward to the big day so why spoil it by leaving the pre nuptial to the last minute. It’s not very romantic and quite possibly it’s not going to be legally binding."

In England and Wales, the supreme court in Radmacher v Granatino (2010) 2 FLR1900 took eight months to decide by a majority of eight to one to uphold a pre-nuptial agreement and in doing so, seemingly brought to an end the long standing rule that pre-nuptial agreements were against public policy.

Many of you would have read the Radmacher v Granatino case in the papers as it made national headlines. However, has it actually changed anything and does it protect family wealth that has been pre-acquired?

In Radmacher the judges of the Supreme Court held: “the court should give effect to a nuptial agreement that is freely entered in to 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.”

So in true British fashion, we have dipped our toe in the water and not being sure we have put a life jacket on. “unless in the circumstances prevailing, it would not be fair to hold the parties to their agreement." Clearly in that one paragraph, the Court has given itself a way out of a straight jacket on pre-nuptial agreements being totally binding upon the Court.

The Supreme Court gave some guidance in relation to the setting up of pre-nuptial agreements. That guidance doesn’t come as any surprise to the practitioner.
The guidance is that the agreement should be entered in to voluntarily, without undue pressure or influence, the parties should be fully aware of the facts and implications of the agreement. They should intend to be bound by it. That the marriage hasn’t already gone ahead. It is desirable but not essential for there to be full disclosure. It is desirable but not essential to have independent legal advice. No agreement will be allowed to prejudice the rights, of any children.

There have been some cases since Radmacher testing the boundaries of the decision and what was actually meant by the guidance. Whilst foreign judgements are not binding they can have a persuasive effect on our courts. So with interest I read a recent article about The Brooklyn Appellate Court which declared a pre-nuptial agreement signed 4 days before the wedding as void. Apparently the Husband threatened if it was not signed the wedding was off and that if they had children the agreement would be torn up. The court found the agreement had been fraudulently induced (apparently very rare for a US court to do).

You can imagine the scene the happy couple meeting up days before the big day. They embrace she senses he‘s a bit edgy but puts it down to pre wedding jitters and not pre nuptial jitters as was apparently the case. He hands her the envelope containing the pre nuptial agreement, which is bound to favour him. She has a million and one things going on concerning the wedding arrangements and he says it’s nothing really just sign it if you don’t I can’t marry you. What a romantic gesture. Not only did his marriage fail but the legal document to protect his assets and income failed too.

He clearly knew a pre nuptial could protect assets and income against a short lived marriage. He just failed to follow some basic principles, one being do it well in advance of marriage and give your partner plenty of time and opportunity to consider the document and if they chose to take advice upon it.

For more information and advice about pre nuptial agreements please contact Mark Mosely on 0800 310 2000.