Pre-nuptial agreements: where are we now?

• This article considers the court’s approach to pre-nuptial agreements and reviews the case law focusing on both decisions where the agreement has been upheld, and those where (for a variety of reasons) it has not been enforced.
• It also examines the court’s approach to foreign pre-nuptial agreements entered into by the parties who subsequently seek divorce in the English courts.

A growing number of cases decided since the Supreme Court ruling in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 have highlighted that pre-nuptial agreements are no longer regarded as contrary to public policy under English law. Our courts will now enforce such agreements, provided certain safeguards are met.

The effect, where such agreements are upheld, is to limit or preclude the parties from relying on the court’s discretionary jurisdiction under s 25 of the Matrimonial Causes Act 1973 (MCA 1973) in determining the proper distribution of family assets on divorce.

The current approach

In Radmacher, the