This century has seen a slow change in the courts' view of pre-nuptial agreements, making them much more likely to be accepted.
Who'd be a family lawyer? Who wants to deal with the fighting, the crying and the hatred of a messy divorce? Who wants to deal with the greed and selfishness? My mother always asked that, which is why it's one of few branches she chose not to practice in.
Would pre-nuptial agreements make it any easier? Do pre-nuptial agreements make sense? Why enter a marriage if you think it has any chance of failure? On the flipside, one might argue that people do change and it follows relationships do too.
Whatever our views on that, I see no reason why individual couples can't consider such an agreement. If one person doesn't want it and feels the other one is being stingy proposing it then the couple-to-be learn something about each other before the wedding. That might be useful in that it prevents a calamitous union. On the other hand, if both parties think it's sensible and modern, that's grand, too.
You may wonder what the point is, though, when the courts have ignored them completely. It's been a matter of public policy since the 19th century that pre-wedding agreements were not legally binding. For those of you interested in why pre-nuptial agreements have mostly been disregarded in England and Wales*, you might like to read what looks like a neat summary here.
Things are changing
In 2000 and 2007, England and Wales had some key changes and rulings that give greater hope to those who want pre-nuptial agreements to be more than worthless pieces of paper.
In a 2000 divorce judgment by the House of Lords, one Lord quoted an older case which observed that 'the law is a living thing moving with the times and not a creature of dead or moribund ways of thought'.
This month the law has moved further with the times.
Granatino vs Radmacher
Two people who wed, presumably for life, are then shown to be 'versus' one another in a fight for as many of their assets as they can get - both parties strongly believing they are right to get the bulk of it and neither, in many such cases, satisfied with the end settlement. Who'd be a family lawyer?
In this case, multi-millionaire Katrin Radmacher will be happy. The Court of Appeal this month will believe it has moved with the times by overturning the initial ruling on the division of this couple's assets based on their pre-nuptial agreement. Lord Justice Thorpe wrote that it had become 'increasingly unrealistic for courts to disregard pre-nuptial agreements'.
Lawyers Moore Blatch reckons this 'paves the way for them to be legally-binding'. I don't take this to mean that a judge will now mindlessly rubber stamp such an agreement. The basic principles of fairness will still apply, and a change in circumstances not appreciated by the agreement, such as bankruptcy, children, or a long marriage, will still carry more weight.
Also, this latest ruling could still be overturned. With so much money at stake, Nicolas Granatino may appeal to the House of Lords. Even so, as time goes by it seems more and more likely that pre-nuptial agreements will be taken more seriously and that pre-registration agreements in civil partnerships will be the same. The Conservatives even proposed last year to make these agreements legally binding in order to increase marriage.
How to go about it
With that in mind, if you want such an agreement, Moore Blatch says that, to have even a chance of success, it'll need to fulfil these three criteria:
- Both parties must fully disclose their financial positions.
- Both parties must be advised separately by their own lawyers.
- The agreement must be signed at least 21 days before the wedding.
I hope that you never need to test it in court!
*I apologise to our readers outside of the areas covered in this article, but my knowledge of the law is limited mostly to England and Wales.
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