For many years, the English court was out of step with much of the rest of the world in disapproving of pre-nuptial agreements, and rarely giving them great weight. Pre-nuptial agreements are now much more common and the 2010 Supreme Court decision in Radmacher v Granatino made it clear that they are now much more likely to be binding on the parties. Provided that the agreement is procedurally fair, and the terms are not unfair in the eyes of the judge at the date of the divorce, then in the event of any dispute the couple are likely to be held to the terms of the pre-nuptial agreement by the English court. Procedural fairness requires the parties to an English pre-nuptial agreement to have independent legal advice and for there to be financial disclosure and a lack of pressure or duress. It is best practice for a pre-nuptial agreement to be signed at least 28 days before the wedding. The terms of a pre-nuptial agreement should also be fair, which means that it should make provision for any children of the family and should not leave the economically weaker party in a situation of real financial need. If a judge considers the terms of a pre-nuptial agreement to be unfair, he or she will make an order which rectifies that unfairness, although the economically weaker party is unlikely to receive as much from the court as he or she would have done in the absence of such an agreement.
In contrast to a civil law marriage contract (common in civil law countries such as continental Europe, South Africa etc), a pre-nuptial agreement does not elect a ‘matrimonial property regime’ i.e. a set of rules which govern how assets are owned and dealt with during the marriage. This is because this sort of regime does not exist in common law countries such as England & Wales and the USA.
We are well versed in the complexities surrounding pre-nuptial agreements with international couples, especially when a civil law country is involved. The partners have acted in some of the key reported cases, such as Crossley and Luckwell v Limata.