Marriage is a big part of life. Unfortunately, so is divorce.
With many UK couples separating (an estimated 42 per cent, in fact), prenuptial agreements – where a couple agrees prior to the wedding how their assets will be divided in the event of a divorce – seem like the smart choice, if not a little bit of an awkward subject to bring up with a prospective spouse.
But until recently, prenuptial agreements hardly carried any weight in court because they were not enforceable in law. Instead they were more like guidelines to be considered but not necessarily followed by judges. Within the last six years, however, the legal significance granted to a well-drafted prenup has grown considerably, and they are now increasing in popularity among all sorts of soon-to-be-newlyweds.
The root of this rise goes back to 2010, when the high-profile case of Katrin Radmacher and her ex-husband, Nicolas Granatino, featured the couple's prenuptial agreement as a key element in the subsequent divorce settlement.
Although Mr Granatino was at first awarded £5.85 million from his heiress wife's wealth, Ms Radmacher made an appeal asking judges to factor in the prenuptial agreement that the couple had signed. In the document, Granatino had agreed not to make any claim on his wife's large fortune.
Taking all elements of the case into consideration, the court upheld Ms Radmacher's appeal and the £5.85 million was reduced to £1 million.
The Radmacher v Granatino case set a precedent in the world of UK divorce law. It established prenuptial agreements as a legal contract which will be upheld as long as the court is satisfied that both parties understood the terms upon signing and that the correct protocol for agreeing the prenup had been followed.. The case clearly helped to set out the specific factors that will be taken into account when deciding if the agreement, or at least elements of it, are still applicable to the estranged couple's situation following relationship breakdown.
The conditions of the perfect prenup
Now that prenups are being viewed in a new light in the divorce courts, it makes sense that many future spouses, as well as their respective families, will see them as an ideal choice to protect their finances and family wealth later down the line, should the worst happen.
It's not all as simple as that, however. While the courts are recognising and enforcing prenuptial agreements more readily, there are circumstances that can render a prenup completely null and void in the eyes of the court. For one thing, the length of a marriage will be considered. A couple married for only a few years, during which time their circumstances have hardly changed, are a lot more likely to have the stipulations of their prenuptial agreement granted than a couple who have been together for a long time (yes cohabitation before marriage will be taken into consideration) and have raised children together. The circumstances under which a prenup was written may have changed significantly in, say, 15 to 20 years and a judge will take this into condideration.
Children are one of the biggest factors when it comes to determining the viability of a prenuptial agreement. The arrangements for minors always takes precedent over other issues, and if the agreement doesn't account for them in a satisfactory way, the necessary adjustments to the distribution of wealth will be made.
The Radmacher v Granatino case established several key conditions that need to be met to prove that the prenuptial agreement was drawn up under reasonable circumstances. For example, it is essential that both parties receive independent legal advice at the earliest possible time so that they are both fully aware of all the implications of the agreement and enter into it of their own free will. Each partner must also have full disclosure of the other's assets so that the agreement can be written as fairly and as accurately as possible.
In short, when it comes to determining a prenup's weight, the main issue at hand, as with all legal proceedings, is fairness. If enforcing the agreement will leave one spouse, or a child, in an unjustly difficult situation or if it can be shown that the circumstances under which the agreement was entered into were less than ideal, any arrangements outlined by the contract will become moot, and it will be up to the judge to decide the best outcome.
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