Pre-nups: an update

The classic case that set up the current interpretation of the law on pre-nups was Radmacher v Granatino in 2010. It led to an increase in the number of pre-nups being signed. A recent article in the Family Law Journal pointed out that the most recent data from the Office for National Statistics records that the median length of heterosexual marriage is now around 12.3 years with other stats suggesting that up to 42% of marriages end in divorce. Does that mean we are now about to see a spike in the number of cases having arguments about the stickability of prenups entered into after the Radmacher case? 

Radmacher set up the main requirements of a binding agreement to be lack of unfair pressure, access to legal advice and proper financial disclosure with an overriding need for the provision to be fair. Cases decided since then have maintained that line and arguably the trend has been to close any loopholes permitting a party to back out of an agreement.

There is still a need for the court to consider all of the factors under Section 25 of the Matrimonial Causes Act but the signing of an agreement is clearly a magnetic factor in that assessment. In an era in which by any estimation the cost, frustration and delay involved in an application to court will stretch the pockets and patience of the average person there is likely to be an increase in the number of couples who decide to regulate the main terms of their potential separation to agree “We will…….” before they ever say “I will”.

There is a lot to be said for obtaining legal advice before getting married instead of when getting divorced. In fact there always has been, but that’s a different song…

Ian Stirzaker is the Senior Partner and Head of Family Law at SME Solicitors. Please contact him, Joanna Gardner or Denise McCabe for specialist help and advice in all aspects of family law at ian.stirzaker@smesolicitors.co.uk or joanna.gardner@smesolicitors.co.uk or denise.mccabe@smesolicitors.co.uk.

Added: 13 May 2024 09:42

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