Pre Nups – Are They Legally Binding?

There is a long standing principle that pre nuptial agreements are not binding in England & Wales.  However there has been a shift in the Courts attitude to pre nuptial agreements and in the case of  Radmacher v Granatino one Judge commented "the old rule that agreements providing for future separation are contrary to public policy is obsolete and should be swept away".

In the judgment for this case the Judges commented on what factors would give greater weight to a pre nuptial agreement.  They are;

  • Has it been freely entered into by each party with a full appreciation of its implications?
  • There is no rule that full disclosure of financial information has taken place, nor that both parties received legal advice, but is there a material lack of disclosure, information or advice?
  • Duress, fraud or misrepresentation will negate the terms of the agreement.  Factors such as whether one party has exploited their dominant position or one party's emotional state and their ages will be taken into consideration.
  • If there are children the court will not hold the parties to the agreement if the result would not provide for the child's needs.
  • It will regard any agreement as unfair if it leaves one spouse in real need whilst the other has significantly more.

In essence, the needs of the parties are the crucial factor in deciding whether to uphold the pre nuptial agreement.  But, every case will be different and it is important you seek legal advice if you are planning to marry and want a pre nuptial agreement.