In the case of Y v Y Lady Justice Roberts threw out a French-style prenuptial agreement – a contract de marriage – which a French couple living in London signed 48 hours before their wedding.
Prenuptial agreements, including French-style contract de marriage, are not strictly enforceable or legally binding in England and Wales. Such agreements cannot exclude the jurisdiction of the court to deal with financial issues on marriage breakdown, or the breakdown of a civil partnership, though the courts find them extremely persuasive in the event that a dispute over a financial settlement actually reaches the courtroom.
Unlike parties with a commercial contract, divorcing couples cannot sue on a prenuptial agreement. When marriages break down the court will not necessarily uphold the terms of the pre-nuptial agreement. All the assets of the marriage whether in the sole name of one or other of the spouses or joint names and whether acquired before, during or after the marriage remain within the court’s discretionary powers – despite a prenuptial agreement.
When couples divorce the court has very wide discretionary powers to distribute family assets, so as to bring about fairness between the couple. The court regards the couple’s respective roles as economic provider and homemaker as of equal value to the welfare of the family.
A prenuptial agreement is just one of the circumstances the court will take into account when exercising its discretionary powers, though if entered into correctly it will be regarded as highly persuasive.
Lady Justice Roberts discussed the main principle established by the decision in 2010 of the Supreme Court in Radmacher v Granatino which said: “The court should give effect to a marriage 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 the agreement.”
In Y v Y the husband’s counsel cited Radmacher v Granatino in arguing that the couple’s agreement should be given “a central and magnetic prominence in terms of its pull towards a financial outcome for this couple”. However, Lady Justice Roberts concluded that the wife had had a more “emotionally intuitive” approach to the marriage than her husband and that while she had understood the function of the contract when she signed it, she had not had any understanding of the financial consequences should the marriage break down. One key requirement of a valid prenuptial agreement is that both parties understand what they are agreeing to so it is vital that both parties take independent legal advice from a specialist family law solicitor.
There is no entitlement to any fixed percentage share when a marriage breaks down (unlike many other European countries) but courts seek to divide all the family assets fairly in ancillary relief hearings.
Prenuptial agreements remain advisable for anyone who is not comfortable with the idea of sharing all their assets equally with their other half on the breakdown of a marriage or civil partnership. Although they are not strictly enforceable, they are a useful template for the division of assets and can be useful in avoiding a family matter ever coming before the courts. If court intervention is required then the pre-nuptial agreement is a very persuasive tool for the court to have at its disposal and can help to avoid lengthy and stressful litigation.
If you want to know more about prenuptial agreements and whether one could help you, or would like to know about postnuptial agreements which can be entered into after a marriage, give us a call on 02071006100.
