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Should prenuptial agreements be part of English law?

Oct 27, 2010

Should prenuptial agreements be part of English law?A Supreme Court ruling has given new weight to prenuptial agreements, which have never before been recognised in English law. Is marriage too important for legal agreements?

What is a prenuptial agreement?

A prenuptial agreement is an agreement made by two people before they get married which says who will get what in the event of a divorce. Usually, this is because the richer party wants to limit what their spouse can claim, in order to avoid "gold diggers".

In some countries, these agreements are legally binding. However, in England it has traditionally been up to the courts to decide on the fairest way to divide the couple's wealth.

In the recent case, Nicolas Granatino signed a "prenup" that limited his share of Katrin Radmacher's £100m inherited fortune. The agreement was signed in Germany, where it would have been legally binding, but because the couple married and divorced in the UK Granatino was able to challenge its legality.

The agreement was upheld, with only one Supreme Court judge dissenting. The only female judge in the Supreme Court, Lady Hale argued that the agreement should be taken into account, but it should only be one of many considerations. Lady Hale added  that the case raised ‘profound questions about the nature of marriage in the modern law and the role of the courts in determining it”.

Radmacher said that the decision "upheld fairness". However, critics have pointed out that the ruling will usually benefit the richer partner and could leave less well-off spouses at a disadvantage.

But however they are used, the new importance of prenups looks set to change marriage in England forever.

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