- 6 years ago
- Wedding: July 2013 - UK
@AmyJCardiff: My answer is long… but if you want sources then I am happy to provide them. Let’s start with a wikipaedia overview:
“Prenuptial agreements have historically not been considered legally valid in the United Kingdom. This is still generally the case, although a 2010 Supreme court test case between the German heiress Katrin Radmacher and Nicolas Granatino, indicated that such agreements can “in the right case” have decisive weight in a divorce settlement. The Law Commission is due to consider whether a change should be made to the letter of the law, recognizing prenupts in a more general way; they will report on the matter in 2012.”
Two questions: 1. What was the law commission’s answer in 2012?
Answer: “Such agreements are not currently enforceable (in contrast to the position in many other jurisdictions). The court may, however, have regard to them in determining what financial orders to make.”
2. Why was the case of Radmacher and Granatino upheld, and so unique?
Firstly, neither of them were UK citizens, and the assets in question were not held in the UK. Secondly, they had already reached an agreement prior to this, which Granatino had already signed. This was part of a longer process of appeal. This makes the case exceptional. Thirdly, inherited wealth held in European countries is not counted as part of the marital assets… with or without a prenup. I refer you to this site:
Now, let’s go back to your statement: “the courts will uphold the pre-nup. In effect, they are now binding unless they are unfair”.
The key to that statement is “unless they are unfair”. What is also missing is the statement “or contradict existing guidelines”. Now, let’s look at the case of Bob and Doreen again. Previous behaviour such as infidelity or violence cannot be used when determining the distribution of marial assets. Again, I refer you here:
“In rare cases behaviour can be considered as a factor in determining the division of assets. However, the behaviour must be severe, for example, in Jones v Jones (1976) the husband attacked and disabled his wife, thereby limiting her earning capacity, and it was considered unfair not to award her more of the available capital as a result.”
Unless your long term earning capacity is diminished, behaviour gets you nothing. So it doesn’t matter that Doreen was shagging the milkman, or that Bob gave her a black eye. Those cannot be binding clauses in a prenup because they contradict existing legislation and are therefore “unfair”. Likewise, Doreen cannot sign away her rights to Bob’s pension. Now, the clause about the clock is fair, provided that Doreen was aware of it’s value prior to the marriage… that can be used as evidence to show that she previously agreed about the clock. But Bob would probably have got the clock anyway.
If you want to hear it from a lawyer, these guys summarise the situation better than I could… Terry and Co. Solicitors. http://www.terry.co.uk/pre-nuptial.html
“Prenuptial agreements have not traditionally been enforced in divorce law in England. A divorce lawyer is often asked about the possibility of making a prenuptial agreement before entering into a marriage. ….Unfortunately, the answer in almost all cases is that the jurisdiction of the divorce courts cannot be ousted in this way and that a pre-nuptial agreement is hardly worth the paper it is written on.
In order to understand why this is so one has to realise that the tradition of the English divorce courts is to look at all the assets of the marriage at the time of the divorce and to distribute them – “his”, “hers” and “theirs” – in whatever way they see fit and accordance with the perceived needs of the parties and of any children. This is done in accordance with certain principles laid down by statute and case law but nevertheless this is the basic outlook of English divorce law when it comes to regulating financial matters between the parties. Indeed, it is an attitude which is shared by Parliament and this paternalistic approach is very different from the more “free market” approach which prevails in the US and which allows the parties to a marriage more freedom to regulate their own financial affairs in the event of divorce.
All the same, there are some good reasons for the English approach and it is not entirely irrational. For a start, it is not obvious how far a prenuptial agreement ought to be allowed to prevail before it is superseded by later events. For instance, an agreement which might seem very sensible in, say, the first year of a marriage might become increasingly irrelevant after the birth of children, a 30 year marriage, illness, bankruptcy or redundancy to name but a few of the factors which could affect any marriage at any time.
The truth of the matter is that it is extremely difficult if not impossible to foresee all eventualities and later events have a habit of quickly making previous agreements seem very irrelevant. Say, for instance, a man comes to a marriage with a sizeable fortune and his wife nothing. The man might wish an agreement to the effect that his wife should have no claim on his pre-existing wealth in the event of divorce. Indeed, this is one of the main reasons for wishing to make a pre-nuptial agreement. The wife might willingly agree to this because she might consider it fair and content to lay claim only to a share of those assets which were built up during the course of the marriage.
If this marriage were to break down after just over a year then the agreement may seem reasonable enough. But should it still be upheld if the marriage had lasted, say, five years and there were children? In the event that there was a divorce in the latter event the needs of the children would be paramount and they would need accommodation. Under such circumstances the English courts would almost certainly traditionally have said that the husband should part with some of his pre-existing wealth to provide such accommodation if the assets built up during the marriage did not suffice. They would in such circumstances regard the needs of the children and of the ex-wife as of more importance than upholding the validity of a pre-nuptial agreement.
In this respect the English courts have not traditionally allowed their discretion to be fettered by pre nuptial agreements entered into by the parties. They would not hesitate to ignore such agreements if they thought it right to do so.”
The only reason lawyers are twisting things and suggesting they might be valid is because they want to make money out of you… but you can only enter into an agreement which does not contradict existing case law! In effect, the outcome will be identical, or practically identical, regardless.