All You Need To Know About Prenuptials And


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An easy to understand guide to the new rules on prenuptial agreements following the Supreme Court\'s decision on the case of Radmacher v Granatino, designed for lawyers, accountants, IFA\'s and other professional advisers.

What has the court said?

What does it mean for you and your clients?

Should you advise your clients to get a prenuptial agremeent?

Join Neil Denny from Mogers Solicitors to get the information you need in this FREE webinar session. 30 minutes session with time for questions if required.

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All You Need To Know About Prenuptials And

  1. 1. All You Need To Know About Prenuptials and Radmacher… By Neil Denny Collaborative Family Lawyer Mogers Solicitors, Bath
  2. 2. Are Prenuptials Legal?
  3. 3. Have You Been Asked To Advise on a Prenuptial (antenuptial) Agreement?
  4. 4. Do You Think Prenuptial Agreements Should Be Binding?
  5. 5. In A Nutshell <ul><li>Prenuptial agreements can be binding but are not automatically so </li></ul><ul><li>If they are disputed when a marriage ends then the court retains its discretion </li></ul><ul><li>Discretion is determined by s25 Matrimonial Causes Act 1973 </li></ul>
  6. 6. The Three Headed Test <ul><li>What was happening at the time the agreement was entered into that might make it less binding… </li></ul><ul><li>Or more binding… </li></ul><ul><li>And do current situations make it fair? </li></ul>
  7. 7. Drilling Down <ul><li>Full judgment is at </li></ul><ul><li> </li></ul><ul><li>Paragraphs 67 – 83 deal with the three headed test </li></ul>
  8. 8. Starting Point
  9. 9. Was there anything going on that undermines the agreement? <ul><li>Should be entered into by free will by both parties </li></ul><ul><li>Both parties should be informed of implications – “sound legal advice is desirable” </li></ul>
  10. 10. Was there anything going on that undermines the agreement? <ul><li>Each party should have all the information that is material to his or her decision </li></ul><ul><li>Each party should intend that the agreement will govern the financial consequences of the marriage coming to an end </li></ul>
  11. 11. Was there anything going on that undermines the agreement? <ul><li>Duress, fraud or misrepresentation </li></ul><ul><li>Undue pressure </li></ul><ul><li>Exploitation of a dominant position </li></ul>
  12. 12. Was there anything going on that undermines the agreement? <ul><li>72. The court may take into account a party’s emotional state, and what </li></ul><ul><li>pressures he or she was under to agree. But that again cannot be considered in </li></ul><ul><li>isolation from what would have happened had he or she not been under those </li></ul><ul><li>pressures. The circumstances of the parties at the time of the agreement will be </li></ul><ul><li>relevant. Those will include such matters as their age and maturity, whether either </li></ul><ul><li>or both had been married or been in long-term relationships before. For such </li></ul><ul><li>couples their experience of previous relationships may explain the terms of the </li></ul><ul><li>agreement, and may also show what they foresaw when they entered into the </li></ul><ul><li>agreement. What may not be easily foreseeable for less mature couples may well </li></ul><ul><li>be in contemplation of more mature couples. Another important factor may be </li></ul><ul><li>whether the marriage would have gone ahead without an agreement, or without the </li></ul><ul><li>terms which had been agreed. This may cut either way. </li></ul><ul><li>Legal representation with careful attendance notes can assist here. </li></ul>
  13. 13. Was there anything going on that strengthens the agreement? <ul><li>Foreign Jurisdiction or Contractual Basis is irrelevent. </li></ul><ul><li>But this might be relevant in historic agreements which have been agreed for many years as evidence of the parties intention. </li></ul>
  14. 14. Fairness – Is it fair today? <ul><li>“ 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. ” </li></ul><ul><li>Paragraph 75 </li></ul>
  15. 15. Children <ul><li>A [pre or post] nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family </li></ul>
  16. 16. Autonomy <ul><li>“ It would be paternalistic and patronising to override their agreement simply on the basis that the court knows best.” </li></ul>
  17. 17. Known events and future events <ul><li>Difference between post-nuptial and pre-nuptial agreements </li></ul><ul><li>Prenuptial agreements often made with no real anticipation of future events </li></ul><ul><li>This can undermine the courts willingness to uphold an agreement </li></ul>
  18. 18. <ul><li>If future events are anticipated and catered for then it will make it harder for a court to override an agreement </li></ul><ul><li>Unaddressed changes in circumstances can lead to an agreement not being upheld </li></ul>Known events and future events
  19. 19. <ul><li>81. …The parties are unlikely to have intended that their ante-nuptial agreement should result, in the event of the marriage breaking up, in one partner being left in a predicament of real need, while the other enjoys a sufficiency or more, and such a result is likely to render it unfair to hold the parties to their agreement. Equally if the devotion of one partner to looking after the family and the home has left the other free to accumulate wealth, it is likely to be unfair to hold the parties to an agreement that entitles the latter to retain all that he or she has earned.” </li></ul>
  20. 20. Are Prenuptial Agreements Discriminatory? <ul><li>Lady Hale dissented. See pages 45-70 </li></ul><ul><li>“ There is a gender dimension to the issue which some may think ill-suited to decision by a court consisting of eight men and one woman” </li></ul><ul><li>Discuss. </li></ul>
  21. 21. Summarise <ul><li>Prenuptial agreements are not automatically binding </li></ul><ul><li>Apply the three headed test if they are later disputed </li></ul><ul><li>Fairness seems to the trump card, quickly followed by need. </li></ul>
  22. 22. Needless to say… <ul><li>Ensure your clients take independent legal advice </li></ul><ul><li>In a timely fashion </li></ul><ul><li>With all relevant and material disclosure </li></ul><ul><li>With records kept of intention and emotional state </li></ul><ul><li>With reminders to review upon change of circumstance </li></ul>
  23. 23. <ul><li>(00 44) 1225 750079 </li></ul><ul><li> </li></ul><ul><li>[email_address] </li></ul><ul><li> </li></ul>