Article by Linda Clegg LL.B. Solicitor and Partner at Douglas Wemyss Solicitors, Head of Family and Private Client Department.

In recent years, pre-nup agreements have become a topic of great interest. The area has been brought to the forefront of our attention again with the recent decision of Radmacher v Granatino. Currently, the position in UK law is that do not form a binding contract, taking matters out of the hands of the court completely. Pre-nups are, however, increasingly taken into account by the courts in making decisions, especially when it comes to the subject of matrimonial finances. When deciding how to rule in a family proceeding, the court must take into account all the circumstances of the case. Whether or not the couple has agreed to a pre-nup is generally one of the most important circumstances. One of the other relevant considerations for the court is the issues surrounding fairness; and deciding to disregard prenuptial agreements agreed by both parties may well be grounds to deem the decision unfair.
 

The court is more likely to depart from the terms of the pre-nup if since the agreement, there have been major changes that haven’t been provided for within. Examples of such circumstances include the birth of children, and if enforcing the agreement might have the effect of leaving one party dependent on state benefits.

In Radmacher, one of the judges suggested that the following three questions should be asked when considering the status of prenuptial agreements:
 

• Did the parties intend it to have legal effect?
   
• Were there any circumstances that would under the general law invalidate a contract?
   
• Was there anything to suggest that one party was taking unfair advantage of the other?

Given the circumstances of Radmacher v Granatino the court decided to follow most of the terms of the pre-nup despite it not being very advantageous to the husband. Furthermore, it was determined that there was no reason that the court should not follow the terms of an agreement which had been freely entered into by both parties.

Unlike other areas of the world including the US, currently, in the UK pre-nups are not binding on the court. Recent decisions show the courts are starting to attach considerable importance to a pre-nup which has been properly entered into, and as such the UK is moving towards the position of the US.  For more information on prenuptial agreements, please contact one of our solicitors today.
 

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