Ten years on - The impact of Radmacher on UK prenups and divorces

Jane Keir, partner, Kingsley Napley, 20/10/2020

It is now ten years today since the UK Supreme Court gave its landmark decision in the case of Radmacher v Granatino [2010] UKSC 42 on the use and effectiveness of prenuptial agreements. 

In doing so it moved the emphasis on to holding the parties to their bargain when setting out the principle that ‘’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. ‘’

There is no doubt that the use of prenuptial agreements has become much more widespread in the last ten years, even where neither party has financial resources that they wish to preserve for their own future use and retention. Many such couples are keen to set out their own arrangements that will pertain on any divorce, as to the future organisation of their finances, in the hope of avoiding costly and lengthy litigation. 

Jane Keir, Kingsley Napley

Interestingly, we are now seeing more and more prenuptial agreements being tested with an increasing number having been drafted and signed post the Radmacher judgment. So what are the criteria for enforcement? Unlike their commercial counterparts, prenuptial agreements are not enforceable automatically, but even so there are still a number of requirements and formalities which must be met if the prenuptial agreement is to be upheld, as follows:-

- it must not seek to avoid responsibility for the financial needs of any children;

- each party must disclose to the other sufficient detail of their financial position – to include any pre-existing and/or inherited wealth – and answer any reasonable questions the other may have, albeit such enquiries are rarely made;

- it should be signed at least 21 days ahead of the wedding;

- there must be no suggestion of duress, fraud, undue influence, misrepresentation or mistake before entering into the prenuptial agreement;

- each party should have independent legal advice before signing.

When looking to enforce the terms of the prenuptial agreement observance and adherence to the above conditions is important. Many prenuptial agreements ar...

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