Geraldine Morris assesses the latest consultation on nuptial agreements
The Law Commission (the Commission) has issued its eagerly awaited Consultation Paper entitled Marital Property Agreements (Law Com 198) in relation to pre-nuptial, post-nuptial and separation agreements.
Current law
It was anticipated that the Commission would await the decision of the Supreme Court in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42. That case has been widely, and wrongly, viewed as authority for the general enforceability of pre-nuptial agreements; in fact it is authority for an agreement to be upheld where the court considers that the agreement satisfies a test of “fairness” within the context of the factors set out in the Matrimonial Causes Act 1973, s 25.
The decision in Radmacher did give considerable weight to the agreement entered into by the parties however, and Lord Philips stated: “The court should give effect to a nuptial 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 their agreement.” It remains however that for
