Pre-nuptial agreements: where are we now, asks Anna Heenan
We are now almost two years on from the case of Radmacher v Granatino [2010] UKSC 42, [2011] 1 All ER 373, in which the Supreme Court swept away the old rule that pre-nuptial agreements were contrary to public policy. The result has been an increase in pre-nuptial agreements by those attempting to combat the uncertainties of divorce. Courts have a wide discretion to redistribute property on divorce, which they exercise according to the principles set out in s 25 of the Matrimonial Causes Act 1973 (MCA 1973) and the concept of “fairness”. It is, however, widely accepted that the elasticity of “fairness” does little to create certainty. Recent case law on pre-nuptial agreements explores the circumstances in which they will be upheld and provides some guidance to those seeking a more certain outcome.
The Radmacher decision
This decision has been the subject of widespread comment and further analysis is perhaps unhelpful (and somewhat late). It is, however, useful to review the factors that
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