Pre-Nuptuals Reviewed By Supreme Court

This article is courtesy of Penningtons divorce solicitors in London

The UK Supreme Court has been considering the law on pre-nuptial agreements. In March this year, the appeal from the Court of Appeal’s decision in the divorce case of Radmacher v Granatino was heard and the Supreme Court’s judgment was released yesterday. 

The court has summarised the position in relation to both pre-nuptial and post-nuptial agreements in this way: 

‘The court should give effect to a 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.’

As a result, in this case, the court said that it was right that the husband, who had signed a restrictive pre-nuptial agreement, received a much smaller settlement than the court would have been likely to award him after a contested financial hearing. 

The Supreme Court has not said that pre-nuptial agreements are binding contracts as this is not possible under the current divorce law. No agreement between a couple can completely exclude the court from considering their financial case on divorce; the court always retains the right to see whether an agreement is fair and whether a different settlement is appropriate. 

The courts have, however, over the past few years been moving towards giving agreements significant weight in certain circumstances and this judgment now strengthens that approach. Where agreements have been properly negotiated and entered into, they will be very influential. Eight of the nine judges agreed with the approach, but Lady Hale took a somewhat different view and gave a dissenting judgment. The full judgment can be found on the Supreme Court’s website