The Rise of the Pre-Nup


Historically pre-nuptial agreements have not been taken seriously by Judges in England who used to refer to them as "irrelevant Americanisms". Indeed, historic attempts by individuals to utilise pre-nuptial agreements were generally rejected by a judiciary unwilling to be dictated to by private agreements.

However the door was clearly left ajar by the 2006 cases of Miller v Miller and McFarlane v McFarlane. Prior to this time my general advice to clients seeking to end a short marriage was that you would effectively “put the parties back in a position as if they had never met.” These two cases clearly sought to adopt something of a change to this approach by looking at the parties’ reasonable needs going forward even in situations of shorter marriages. In the case summaries it was strongly hinted that attempts by individuals to secure/ring fence assets from future consideration may be looked upon more favourably by the Courts, in the future, especially in shorter marriages.

These cases only left the door ajar and were notgroundbreaking developments.However it is a door that has been pushed at consistently since that time.

Without a doubt the case that did represent a groundbreaking development in this area was that of Radmacher v Granatino which was a 2010 case where effectively the Supreme Court upheld a pre-nuptial agreement.

This judgment did not provide for an automatic rubber-stamping of pre-nuptial agreements. Indeed the judge said that pre-nuptial agreements cannot override the reasonable needs of the parties and of course children to a marriage. However there was a clear indication that if a pre-nuptial agreement was fair, not entered into under duress with both parties having the benefit of independent legal advice prior to their endorsement (or the opportunity to do so) that there was every possibility of such a pre-nuptial agreement being upheld by a court.

This decision was further endorsed by WW v HW which is a September 2016 case where the High Court gave significant weight to a pre-nuptial agreement. On this occasion it did so even though the pre-nuptial agreement did not provide for the husband’s needs.

In more recent times it has been stated that there is nothing inherently unfair about an agreement seeking to ringfence assets accrued prior to a marriage, or assets a party anticipates receiving from a third party during the marriage through a lifetime gift or inheritance.

Although the Family Court judiciary are loathe to be told what to do there has been a clear movement away from "show us your pre-nuptial agreement and we’ll decide what worth should be attached to this document" to a scenario where judges are effectively stating to the other party "we have seen the pre-nuptial agreement, you tell us why this is no longer a valid document."

The increasing validity of such pre-nuptial agreements makes it important to obtain relevant legal advice on such matters prior to any upcoming marriage. Given the case law in this matter there is clearly a thought towards having any pre-nuptial arrangements contemplated, signed and witnessed by all parties at least one month prior to the wedding so individuals should bare this in mind and seek advice well in advance of their wedding day.

Developments continue and are awaited with interest in this developing area of law.

If you would like to discuss a pre-nuptial agreement call your nearest Bird &Lovibond office.

Uxbridge - 01895 256151 | Ruislip - 01895 636037 | Greenford - 0208 5786 936

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