A prenuptial is an agreement whereby a couple, prior to marriage, decide the division of money and property in the event of a divorce.
The traditional position of Courts in England and Wales was that prenuptial agreements are not enforceable. This position shifted in Radmacher vGranatino (2010) whereby it was stated that it shall be natural to infer that parties who enter into a prenuptial agreement intend for it to be given effect. Vitiating factors and unfair terms will detract from the weight to be given to prenuptial agreements.
The principles of Radmacher were recently considered and applied in the case of ZvZ (2011).
When it comes to negotiating and drafting a prenuptial agreement, from the case law mentioned above and older case law such as KvK , the following features are common when it comes to Courts upholding a prenuptial agreement:
The Law Commission are due to produce a report on ‘marital property agreements’ in 2012. Prenuptial agreements are put before the Court more regularly and are likely to become more common amongst all clients, not just the very wealthy anymore.
Given the expense of litigating and people’s own experiences of marriages, more people are opting for a prenuptial agreement to secure their financial position and protect that which they have worked hard to accumulate before marriage.