The family law courts last year saw an overturn in opinion regarding the potential validity of pre-nuptial agreements in England and Wales. Whilst pre-nuptial agreements are not binding in the UK, the courts indicated in Radmacher v Grantino that they were increasingly willing to consider them as a circumstance of the case, and apply those parts of the agreement which do not contravene any principles of family law. A pre-nuptial agreement could potentially ignore important established principles; a commonly feared example of this is an agreement remaining silent in the case of children being born into a family, or funds being insufficiently or ineffectively allocated so that children are improperly provided for. In such circumstances, the discretion of the court can be used to divide family assets equally, or in a way that is fair and necessary to accommodate the needs of the children. A ‘pre-nup’ may work to reduce or exclude the jurisdiction of the court and its ability to divide family money where needed.
Radmacher has subsequently undermined the Privy Council decision in Macleod v Macleod, which stated that pre nuptial agreements could never be binding and highlighted the distinction between pre-nuptial agreements and post-nuptial agreements due to the timing at which each is made. While the Privy Council decision was not binding, it shed light on judicial opinion at the time. Arguably the Macleod case made it crucial for subsequent case law to set the record straight when it came to pre- nuptial agreements, and this has seemingly been done in Radmacher.
The judges in Radmacher stated unanimously that they could not see the:
Distinction … between pre and post marital agreements.
The change in position is supported by academics such as Joanna Miles who has written, ‘why is a spouse more grown up than a fiancée, particularly … when that fiancée is coming around for the second time?’ This statement seems to indicate that people can be in the same state of mind when they make a pre- or post-nuptial agreement and one can easily question what exactly the difference is between an agreement made the day before or day after a marriage.
Some have argued that Radmacher v Granatino provides scope for pre-nuptial agreements to become binding in the UK given the right circumstances, for example, if children are accounted for, the agreement is written by someone qualified and each party agrees to the terms – effectively giving their informed consent to the agreement. It is therefore important to consider what, if anything, pre-nuptial agreements will provide as an advantage in marriage.
The first point to mention is that of legal certainty. If a couple has an agreement in place relating to their marriage, they are less likely to suffer the inconsistencies that are so often seen in marital agreement cases, since parties could predict what would happen to their assets after the breakdown of their marriage. Whilst this is said, the pre-nuptial agreement must reflect the key concept of fairness and there is no level of certainty as to what will be viewed as fair and what will not by a court. Fairness can be seen as an elusive concept and can differ between individual cases, meaning that this certainty could sometimes be undermined. However, if definitive guidelines were produced to establish what a pre-nuptial agreement could and could not include, legal certainty would be provided.
Reduced litigation costs
A second advantage is that of reduced litigation costs. If terms are already agreed and providing the circumstances have not changed considerably, then there is less need to litigate. In order to make these reduced costs a reality, the courts or Parliament would have to produce sample agreements that others could base theirs on in order to ensure that there could be no disagreement at a later date over the terms of that agreement.
A third advantage is that of personal autonomy. If pre-nuptial agreements were made binding, it would give people a choice as to how their assets were divided on the breakdown of a marriage, and technically a couple could decide the terms of their own marriage. This in turn could promote the idea of marriage to those who may have been married and divorced before, and lost faith in the institution of marriage based on a breakup that was messy or complicated for all involved. Marriage puts people in a better legal position than cohabitation, especially where children are concerned, and therefore this promotion of marriage may create a greater level of security for a family unit if the marriage were to fail.
A final advantage to mention is that making pre-nuptial agreements binding would put the UK in line with other jurisdictions. The USA and a large proportion of Europe already regard pre-nuptial agreements as binding, and if the UK followed this trend we could avoid a multitude of problems. These problems include a party seeking to enforce a pre-nuptial agreement in the UK, with it having originally been made in a jurisdiction where they are seen as binding – the situation in Radmacher v Granatino. Whilst this is said, if it became public knowledge that pre-nuptial agreements had been made binding in order to comply with other jurisdictions, the doors may open for pressure groups to call for additional reforms in order to comply with other conflicting laws outside the UK.
Whilst there are numerous advantages, there are still downsides to the ruling – in particular that the decision itself hasn’t done a lot to formally change the legal position on pre-nuptial agreements. The court stated that pre-nuptial agreements have the potential to be binding, however it did little to explain why or when this could be the case. Furthermore, as the court’s lack of unanimity showed a shadow of doubt as to whether they should be binding, and as Parliament still seem unwilling to legislate on the issue, the position remains uncertain.
It is opined that the courts took this approach at the time to promote the institution of marriage. Pre-nuptial agreements can themselves act as a tool for such encouragement, especially for those who have previous negative experience. But until an approved model of a pre-nuptial agreement is put place to provide strict guidelines in this area, judicial discretion must be retained.
Another difficulty when accepting the decision in Radmacher regards the formation of the panel sitting in the Supreme Court. Of the five giving the ruling only one was a family specialist, Baroness Hale. Given her field of expertise and the fact that she had dissented, stating that pre-nuptial agreements shouldn’t be binding due to the problems they could cause, one begins to understand the doubts surrounding the decision. Many may regard her views as superior, and suggest that her refusal to accept the viewpoint of the majority means that the decision was never really likely to have any strong effect on the UK legal system.
Whilst some of the advantages can be turned on their head and rebutted, their strengths could outweigh the disadvantages.
-  Radmacher (formerly Granatino) v Granatino  UKSC 42
 MacLeod v MacLeod  UKPC 64
 Are Pre- and post-marital agreements finally worth the paper they are written on? Caitlin Jenkins, Private client business (family law), 2011
 Radmacher v Granatino  EWCA Civ 649: Upping the Ante-Nuptial Agreements, Joanna Miles, Child and Family Law Quarterly, 2009
- There are no linked resources for this article.