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Binding issues
Suzanne Kingston and Amy Royce-Greensill summarise the
current position on pre-nuptials and set out a comparison of
the approach in other jurisdictions
for JP Morgan, where, at the height
of international comparative
This articles.
is the fourth
in a series
In the first,
the
of his career, he earned £325,000
practitioners supported the motion
a year. The couple had signed a
German-style pre-nuptial agreement
(a marriage contract) before their
wedding, which barred Mr Granatino
from making financial claims against
his wife on any subsequent divorce.
Ms Radmacher's family required
there to be a marriage contract to
protect her inherited wealth, and
her intended further substantial
inheritance.
for the enforcement of pre-nuptial
agreements. In particular, there was
By the time of their separation
in 2006, the couple's circumstances
discussion centred on cohabitants
('The breakdown deficit', FLJ73,
February 2008, p9), the second on
jurisdiction ('No place like home?',
FLJ75, April 2008, plO) and the third
on civil partnerships ('Paris match',
FLJ99, September 2010, p12).
At a Resolution debate,
the overwhelming majority of
must discussion of the high level
had altered significantly. Mr
of judicial discretion, which led to
Granatino, no longer working in
uncertainty in relation to financial
the City, had opted to study for a
PhD in biotechnology at Oxford
outcomes. In order to obviate that
problem, it was suggested that
pre-nuptial agreements should
become legally enforceable and
binding. Following the Supreme
f
1
University. Ms Radmacher had
amassed an inherited fortune of
over £lOOmilion from her
family's paper company.
Court decision in Radmacher (formerly
SIIZal11e Kingstoii
GranatiilO) v GranatiilO (2010), we are
High Court
is a partner and
Amy Royce-Greensill is a
solicitor at Withers LL?
firmly moving in that direction.
In this article we consider
that decision and its impact, and
include practical top tips and issues
In the High Court, Baron J considered
that Mr Granatino's award should be
'circumscribed to a degree' to reflect
r
the fact that he had signed a marriage
1
arising from the judgment. We look
contract.The judge found that, 'as a
at post-nuptials and their use and, as
always, we provide a helpful table,
comparing jurisdictions around the
world. We have of course been
assisted by our international
colleagues, and their details are
set out below by way of credit
man of the world', he understood the
'When considering a
pre-nuptial agreement the
court should take all of the
circumstances of the case
into account from the basis
and thanks.
debts and a further £2.335m to
Radmacher: the facts
The parties married on 28 November
1998. The husband, Mr Granatino,
that each case will turn on
was French and the wife, German.
its own facts:
At the time, Ms Radmacher ran a
boutique in Beauchamp Place,
London, and Mr Granatino worked
12 Family Law Journal
underlying premise of the agreement
was that he was not entitled to
anything on divorce, but she also
found that the agreement was
manifestly unfair. Mr Granatino
was awarded £2.5 million for a
home, £700,000 to payoff his
provide him with a lifetime
income. Ms Radmacher was also
ordered to provide a new car and
fund the cost of a furnished house
in Germany for Mr Granatino to
enable him to visit their children at
the weekends.
November 2011
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The Court of Appeal held that
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Mr Granatino had fully understood
the terms of the,agreem.~nt when he"
signed the marriage contract. He
had the opportunity to avail himself
nuptiåi agreement that is freely
court should take all of the
entered into by each party"
circumstances of the case
into account from the basis
that each case wil turn
on its own facts. The
with the full appreciation of
its implications, unless in the
circumstances prevailing
of the conventional safeguards
of taking independent legal advice
'The court should give effect to a nuptial agreement
that is freely entered into by each party with the
full appreciation of its implications, unless in the
circumstances prevailing it would not be fair to hold
the parties to their agreement.'
and requiring financial disclosure
from his spouse, but he had chosen
not to.
The Court of Appeal reduced
Mr Granatino's award and held
that, while Ms Radmacher should
provide him with the use of a £2.5
milion home so as to fulfi his role
as the father of their children, this
house would revert to her once
their youngest daughter (who was
eight at the time) turned 22. The
Court of Appeal further reduced
the £2.335 milion lump sum
allocated to Mr Granatino to such
amount as would give him income
for 15 years, at which point his
financial responsibilties as
homemaker for his daughters
would come to an end.
it would not be fair to hold
the parties to their agreement.'
It follows that a pre-nuptial
agreement can now be
binding, unless unfair.
Key features of the
Supreme Court decision
· Although the law in relation to
pre-nuptial agreements has evolved
over time, there had been an
outdated view that such agreements
were contrary to public policy. This
Supreme Court
The Supreme Court upheld the
Court of Appeal decision, saying
'the court should give effect to a
court of course retains its
overall discretion to
disregard the terms of any
nuptial agreement, where
appropriate.
.
The key consideration for the court is
fairness. This, again, is a fact-specific
issue, but the court did give some
guidance as to features that should
be considered in relation to this:
.
A nuptial agreement cannot
be allowed to prejudice the
reasonable requirements of any
.
The court should respect
individual autonomy and not
be too paternalistic in reviewing
arrangements freely reached
is no longer the case.
.
When considering a
pre-nuptial agreement, the
Practical tips following Radmacher
children of the family.
between spouses. This is
Change your letter of advice to refer to this important judgment.
Consider carefully what factors the court will take into account when dealing with
the weight to be attached to a pre-nuptial agreement.
Consider what financial disclosure has been given and whether independent legal
advice taken.
Question whether the parties intended/intend the pre-nuptial agreement to be
effective.
Are/were any vitiating factors present?
Consider the parties' emotional state and the impact of that on any potential
agreement.
What are/were the circumstances of the parties at the time of the agreement?
Has any provision been made for children or future children of the family?
Is there a delineation of property - some matrimonial and some non-matrimonial?
Does the agreement deal with potential future contingencies?
.
particularly relevant where the
parties' agreement addresses
existing circumstances, and
not the contingencies for an
uncertain future;
The court was clear to draw a
distinction between matrimonial
and non-matrimonial property.
We consider this further in
this article in the context of the
foreign elements of pre-nuptial
agreements, but suffce to say
at this point that the court has
endorsed the use of pre-nuptial
agreements specifically when
dealing with inherited or
pre-acquired assets. The
Supreme Court had suggested
that the shorter the marriage,
the more likely that the terms
of a pre-nuptial agreement wil
be upheld in their entirety;
How would the arguments of needs/compensation and sharing work in relation to
the facts of this particular pre-nuptial agreement?
November 2011
and that parties should not be
unfairly held to the terms of a
pre-nuptial agreement that
Family Law Journal 13
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INTERNATIONAL
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Pre-nuptial agreements
.
California
.
Post-nuptial agreements
Pre-marital agreements are covered by the California Family
.
Code (ss 1600 et seq). (In CA marital agreements are
referred to as pre-marital and post-marital agreements in
the California Family Code).
The rights of children cannot be regulated by a pre-marital
agreement, including the right to support and custody. In
.
.
the spousal support provision is sought was not represented
by independent counsel at the time (or if the provision
reconciliation.
The law allows parties to contract as to issues relating
to property, but for there to be a transfer of real
or personal property 'it must made in writing by an
express declaration that is made, joined in, consented
regarding spousal support is unconscionable at the time of
enforcement) (s 1612). A pre-marital agreement will also not
be enforceable if it can be proved that the agreement was
not entered into voluntarily or that it was unconscionable at
the time and the party was not provided with fair disclosure
.
(and did not waive their right to disclosure).
In a pre-marital agreement a party can waive the disclosure
beyond which they provide themselves (s 1615).
.
.
Pre-marital agreements do not requ ire consideration
.
to, or accepted by the spouse whose interest in the
property is adversely affected' (s852). It is not clear
whether parties can agree to limit spousal maintenance
(as is permitted in pre-marital agreements).
Post-marital agreements allow parties to waive all their
rights to marital property (community property).
(s 1611).
Post-marital agreements, like pre-marital agreements,
cannot adversely affect parties' rights relating to
child support and child custody. They cannot include
penalties for unfaithfulness or personal matters such as
penalties for using drugs.
.
There are two leading cases in California covering
post-marital agreements (Burkle 11 and IRMO Friedman,
ibid).
.
Post-nuptial agreements are only used as a means
of settling family disputes as to property following
marriage breakdown and as an alternative to going to
court.
.
MacLeod-style post-nuptial agreements are not used in
Cyprus (yet).
have fiduciary duties to one another (s72I).
.
cover post-marital agreements.
Post-nuptial agreements may be entered into during
of a separation or a divorce for the purpose of
not enforceable if the party against whom enforcement of
Parties entering into pre-marital agreements are not
bound by fiduciary duties to one another (unless there is a
confidential relationship or there is weakness, dependence,
etc), whereas parties entering into post-marital agreements
r
Post-marital agreements are authorised by statute;
however, the pre-marital agreement statutes do not
a marriage when the parties do not contemplate a
breakup, or they can be entered into in the middle
addition, a provision limiting the right to spousal support is
.
t
There is a doctrine that prohibits pre-marital agreements
being promotive of divorce. It is not known whether
this doctrine is still alive and whether it would cover
post-marital agreements.
Cyprus
.
Pre-nuptial agreements are not used in Cyprus. However,
the law is similar to English law: pre-nuptial agreements are
not binding but may be taken into consideration if adduced
as evidence.
.
Cypriot law is heavily influenced by English law and if
a post-nuptial agreement did come before the Cypriot
courts, their position is likely to be similar to the
position in MacLeod.
France
.
French marriage contracts are valid insofar as they organise
.
the matrimonial property regime of the spouses. The
French courts have no jurisdiction to set aside or amend a
marriage contract.
.
Couples are permitted to validly change their marital
regime after two years before a notary.
French pre-nuptial agreements that govern financial
arrangements for divorce are not enforceable and are
considered contrary to public policy.
.
The combined effect of the Hague Convention 1978, the
Maintenance Regulation 4/2009 and the Hague Protocol is
that foreign pre- and post-nuptial agreements that refer to
foreign law will be enforceable and binding in France.
Germany
.
Pre-nuptial agreements are covered by s 1408 of the German
Civil Code (BGB), which provides freedom of contract. The
following issues may be subject of an agreement: applicable
law, maintenance on divorce, matrimonial property rights
.
Post-nuptial agreements under German law are dealt
the same way as postnuptial agreements and there are
absolutely no differences between pre- and post-nuptial
agreements.
and adjustment of pension rights.
.
The contract must be notarised and both parties must
be present. If the contract is signed in a foreign country it
is suffcient if the formal requirement for such a contract
in such foreign country is observed (Article I I of the
Introductory Law to the German Civil Code, EGBGB)
-14 Family Law Journal
November 2011
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Post-nuptial agreements
Pre-nuptial agreements
.,
_.
Germany
(continued)
.
Representation by legal counsel is not mandatory. Full
disclosure is also not required.
.
According to the leading decisions of the Federal
Constitutional Court (Bundesverfassungsgericht) and the
Federal Court of Justice (Bundesgerichtshof) the courts are
able to interfere with pre-nuptial agreements.
.
The court is required to undertake an overall examination
of the agreement, of the reasons and circumstances of its
conclusion and the intended and realised organisation of
married life. The Federal Court of Justice directs the factfinding judge when examining the agreement to take two
principal steps:
.
The first step is the examination of effectiveness within
the meaning of sec. 138 German Civil Code. A marriage
contract will be considered to be contrary to public
policy only if regulations from the central issues of the law
governing the legal consequences of divorce are totally, or
at least in central parts, contracted out of the contract.
However, provisions affecting the central issues will be
possible if such effects are mitigated by other advantages, or
if they are justified by special circumstances of the spouses,
the type of marriage desired or lived by them or by other
important interests of the benefiting spouse.
.
The second step (Ausübungskontrolle) is to examine the
marriage contract in accordance with s242 German Civil
Code (BGB) at the time of the separation of the parties.
The judge has to examine whether and to what extend, a
spouse misuses the rights granted to him by the contract
in the light of the relevant circumstances at the time
of the separation, irrespective of whether or not those
circumstances were foreseeable at the time of conclusion of
the contract.
Ireland
.
Pre-nuptial agreements are not used in Cyprus. However,
.
the law is similar to English law: pre-nuptial agreements are
not binding but may be taken into consideration if adduced
tested before the Irish courts. However, it is arguable
that the more recent the agreement, the more likely it
is to be given weight.
as evidence.
.
The concept of post-nuptial agreements has not been
Article 41.3.2 states that the court may only grant a divorce
where it is satisfied that there is proper provision for the
parties and that there is broad judicial discretion having
regard to the factors contained in the Family Law (Divorce)
Act, 1996 in this respect. Therefore, the court would have
to review the provisions of a pre-nuptial agreement in order
to ensure that this standard was met.
.
If a pre-nuptial agreement were to come before the
Irish courts, it is possible they may take the pre-nuptial
agreement as one of the circumstances of the case to take
into account under Article 20 of the Family Law (Divorce)
Act 1996.
.
Couples entering into a marriage are allowed to agree to
renounce their legal right to share in the estate of their
spouse upon death (s I 13 Succession Act 1965).
Italy
.
Any agreement made to regulate the effects of a future
.
divorce is null and void. However, couples can enter into a
marital agreement to elect a matrimonial property regime.
Under Article 162 of the Civil Code, convenzioni
As with pre-nuptial agreements, an agreement before
marriage to deal with provision upon divorce is null and
void.
.
matrimoniali (marital agreements) can be entered into
to choose either a community of property regime or a
There is no difference as to how marital agreements
made pre- and post-marriage are treated.
separation of property regime.
Jersey
.
There is no definitive case law yet. However, Jersey courts
.
There is no case law on post-nuptial agreements yet.
tend to follow the lead of English courts.
November 2011
Family Law Journal 15
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Post-nuptial agreements
Pre-nuptial agreements
Malta
.
There are two categories of pre-nuptial agreements. One
type of agreement is the engagement contract, where the
parties to the agreement promise to marry one another.
The other type serves to regulate aspects that relate to
.
The default matrimonial property regime is community
.
of acquests (Article 1316 of the Civil Code).
Marriage celebrated outside Malta by persons who
subsequently establish themselves in Malta shall also
Article 1237 of the Civil Code states that spouses may, in
a pre-nuptial or post-nuptial contract, agree that property
acquired during their marriage shall remain separate or that
.
11
.
arrivaL.
.
Couples who are subject to the community of acquests
it shall be governed by the system of community of residue.
regime may wish to opt for a different regime at some
The law prohibits future spouses from including certain
point in their marriage. The different regimes are
Separation of Estates or Community of Residue under
Separate Administration (Article 1237 of the Civil
Code).
provisions in their pre-nuptial agreement (for example
clauses selecting a sole head of the family or violating
rights deriving from paternal authority or minority).
.
11
produce between such persons the community of
acquests with regard to any property acquired after their
the future marriage.
.
,
Stipulations as to the religion of children are allowed.
Certain stipulations regarding hereditary succession are
also permitted.
.
"
Agreements between the future spouses that exclude the
mutual obligation of maintenance between the spouses
would be legally unacceptable.
.
Marriage contracts must be expressed in writing and in a
public deed and become operative in regard to third parties
if and once they are registered in the Public Registry in Malta
New York
.
New York courts have repeatedly declared that it is the
.
public policy of the state of New York to favour marital
.
agreements.
Pre-nuptial agreements are treated in the same way as
post-nuptial agreements.
.
Since there is generally no fiduciary relationship between
.
the parties prior to their marriage, it is perhaps even
easier to enforce pre-nuptial agreements as compared to
post-nuptial agreements.
Notwithstanding all of the above, a provision in a prenuptial agreement concerning spousal maintenance that
limits either the amount or the duration will not be
enforced unless (a) it was fair and reasonable at the time
.
Post-nuptial agreements are generally enforced in New
York. The Domestic Relations Law expressly authorises
them (sec 236B(3)).
A post-nuptial agreement must be in writing, subscribed
by the parties, and acknowledged or proven in the
manner required to entitle a deed to be recorded.
.
There is a strong presumption that a deliberately
prepared and executed post-nuptial agreement manifests
the true intention of the parties. Such an agreement
.
will be set aside only if clear evidence is introduced that
establishes that the agreement was unconscionable.
There is no express requirement that the parties must
be represented by independent counsel or that there
the agreement was made and (b) it is not unconscionable
must be financial disclosure or that there should be a set
at the time of the divorce.
period between the presentation of the contract and its
execution. However, practitioners generally recommend
compliance with these precautions.
Some cases have focused on the fact that a husband and
.
wife have a fiduciary duty towards each other, which
might make it a little easier to prove unconscionability,
especially when the titled spouse is the one who handled
the family's financial affairs.
New Zealand
.
Pre-nuptial agreements exist by virtue of s21 Property
.
Notwithstanding all of the above, a provision in a
post-nuptial agreement concerning spousal maintenance
that limits either the amount or the duration will not
be enforced unless (a) it was fair and reasonable at
the time the agreement was made and (b) it is not
unconscionable at the time of the divorce.
.
Post-nuptial agreements are subject to the same
regime as pre-nuptial agreements (s21 A Property
.
Although the Act does not distinguish between
(Relationships) Act 1976. This allows couples to contract
out of the provisions in the Act by making an agreement
.
relating to the status, ownership and division of property.
The agreement must be in writing, signed by both parties,
(Relationships) Act 1976).
settlement (compromise) agreements which are
their signatures witnessed, and certified by a lawyer, and
concluded at the end of a marriage and 'contracting-
the parties must have received independent legal advice.
out' agreements (be they pre- or post-nuptial), case
law makes it clear that an agreement designed to
definitively divide property following a separation will
be scrutinised more closely in terms of what the parties
might have received if the matter had been litigated
than 'contracting-out' agreements, where an element of
'freedom of contract' is imported (Harrison v Harrison
(2005) and Wood v Wood (i 998)).
16 Family Law Journal
November 2011
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Pre-nuptial agreements
Portugal
(cont)
.
Pre-nuptial agreements are governed by the Civil Code (sill,
Post-nuptial agreements
.
.
nuptial agreement or the marital property regime
are forbidden, except in limited circumstances as
(Article 1698) but there are some restrictions on what a
authorised by Articles 1714 and 1715 ofthe Civil
pre-nuptial agreement can cover. For example, a pre-nuptial
Code. Article i 715 sets out what types of changes
agreement cannot regulate succession (except in specific cases), it
cannot alter parental or conjugal rights or duties and it cannot change
are authorised.
.
As with pre-nuptial agreements, such agreements
must be made by notarial deed or statement before
a civil registrar.
the rules concerning the administration of the goods of the couple.
.
Post-nuptial agreements that change the pre-
Pre-nuptial agreements regulating the marital property regime are free
Articles 1698-1716).
A pre-nuptial agreement must be made by notarial deed or
statement before a civil registrar.
Scotland
.
.
Pre-nuptial agreements are recognised under Scottish law.
.
There is no difference between pre- and post-nuptial agreements,
Post-nuptial agreements are recognised under
Scottish law.
but there are some differences between those that take effect
during a marriage and those that take effect upon divorce. Those
that take effect during the marriage may be inferred to have been
revoked. It is diffcult to set aside an agreement (or any term of it)
that takes effect upon divorce without agreement.
South
Africa
.
Pre-nuptial agreements entered into before 1984 did not cater
for an accrual or sharing regime. However, in 1984 the Divorce
Act was amended to provide for such a redistribution of assets as
.
Post-nuptial agreements are catered for by s21
.
A post-nuptial agreement may be registered after
Matrimonial Properties Act no 88 1984.
the court may deem equitable taking certain factors into account.
the date of marriage only by application to a court
Pre-nuptial agreements entered into after this date are regarded as
absolutely binding. Such agreements may choose either to opt out
of the community of property regime and choose a non-sharing
and by following certain formal procedures such
as, for example, advertising in newspapers and
the Government Gazette, advising creditors and
making out a case on affdavit.
regime or the accrual regime.
.
If the parties chose an accrual regime, upon divorce (or death), the
.
Once the judge has granted the registration of
the post-nuptial agreement, it has to be formally
attested in front of a notary and thereafter
accrual on each estate is calculated by deducting the commencement
values of the assets and the excluded assets (which assets should
be excluded can be chosen by the spouses in their pre-nuptial
agreement) from each total estate, and the estate with the smaller
registered in the Deeds Offce.
accrual will be deducted from the estate with the larger accruaL. The
difference between the two parties' accruals will be divided by two
and made over to the spouse with the smaller accrued estate.
Spain
.
.
Pre-nuptial agreements that deal with the matrimonial economic
.
on the Spanish courts. By signing a post-nuptial agreement,
A pre-nuptial agreement must be executed as a deed before a
it is possible to modify the matrimonial economic regime
that applies to the marriage (which either is chosen in a
notary public and registered at the Civil Registry.
.
The effects of marriage shall be governed by the personal law
common to the spouses at the time of the marriage; in the
pre-nuptial agreement or applies in default).
.
absence thereof, by the personal law or the law of the place
agreement.
However, pre-nuptial agreements cannot deny maintenance or
compensation rights or be detrimental to children since they will
be deemed contrary to public policy.
Post-nuptial agreements have the same restrictions
as to content as pre-nuptial agreements (eg cannot
deny maintenance or compensation rights, etc).
of residence of any of them, chosen by both in a pre-nuptial
.
Post-nuptial agreements are valid, enforceable and binding
regime are valid, enforceable and binding on the Spanish courts.
.
Similarly to pre-nuptial agreements, post-nuptial
agreement must be executed as a deed before a
notary public and registered at the Civil Registry.
.
In contrast to pre-nuptial agreements, post-nuptial
agreements cannot choose the applicable law under
any circumstances.
Switzerland
.
.
Marriage contracts - as opposed to pre-nuptial agreements - that
.
deal with the matrimonial property regime are common. There
are three matrimonial regimes: shared acquired property (Articles
196 CC et seq), joint property (Articles 221 CC et seq) and
separation of property (Articles 247 to 251 CC). Shared property
is, under Article 181 CC, the default regime if spouses do not
enter into a marriage contract. Spouses are free to choose the
applicable law (provided there is a connecting factor, eg residence,
.
nationality, etc).
Agreements that deal with the effect of divorce
.
(pre-nuptial agreements) are not as common and they have limited
A post-nuptial agreement may either be the first
agreement that spouses enter into or an agreement
to replace or modify an existing pre- or post-
nuptial agreement.
If the post-nuptial agreement deals with the
matrimonial regime, it must be in the form of a
public deed, authenticated by a public notary (a
'marriage contract). Such marriage contracts are
binding (save in the event of a defective motive).
If the post-nuptial agreement only deals with
maintenance, children or occupational pension
enforceability. Normal contract law applies to such agreements.
matters, the agreement does not have to be
In addition, spouses cannot contract on all effects of divorce
a public deed. However, as with pre-nuptial
agreements, such post-nuptial agreements have
limited enforceability. The more time that elapses
(surname and citizenship are excluded, for example). Spouses can
have a pre-nuptial agreement that relates to children (maintenance
and custody) or occupational pensions, but such agreements will
not be binding on the courts.
between the agreement and the divorce, the
greater the chances that it will be found inaccurate
or unfair.
November 2011
Family Law Journa I 17
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th r, ii'.
· It seems c1e'ar from this decision that r c agreement ~as draw(up)n G¿lm~nf Ii =0 AK v K (AIlC)ilary Relief: Pre-Nuptial
spouses can tlse
a.nuRtial
agreement
by a notary instructed by the wife's" (2003)1 FLR 12
. ~,~
,
.. Id IÌ ". ~ '" I'.. greemeiit
to tr to contract out of the 'sharig'
principle, but not 3ut of the 'needs'
Further, the agreement stated that (2008) UKPC 64
or 'compensation' principles set out
the effects of the marriage in general in Miler v Miler; Macfarlaiie v
in the cases of White v White (2001)
terms of matrimonial property and the Macfarlaiie
and Miller v Miler; Macfarlaiie v
law on succession would be governed (2006) UKHL 24
by German law. The agreement was Radiiaclier (foniierly Graiiatiiio) v
Macfal'lane (2006). Essentially, what the
court is saying is that it
would be unfair to hold parties
.
mo er. . MacLeod v MacLeod
valid under German law; the choice of Graiiatiiio
German law was valid; the agreement !;~I ~O) UWlKS~ 42
to an agreement if one partner is
.. YV,llte
v Ilte
would be recognised
as valid under (2000)
UKHL 54
left in the predicament of need.
French conflict of law rules. Wood v Wood
Prior to Radmaclier, we had
considered the' K v K checklist', and
there has been much discussion
subsequently about whether or not
that checklist applies. For a pre-nup
to carry full weight, both parties must
enter into it of their own free wil,
without undue influence or pressure,
and be informed of its implications.
Questions have been raised about
whether it is imperative to have
independent legal advice. This case
The court clearly considered the (1998) 3 NZLR 234)
applicable law in this case. When the
court exercises its jurisdiction to make
an order for financial relief under the
post-nuptial during the course of a
Matrimonial Causes Act 1973, it wil
happy marriage.
apply English law, irrespective of the
domicile of the parties or any foreign
Conclusion
connection. In this case, the relevance of The law relating to pre-nuptial
German law and the German choice of
agreements in this country has
law clausewas that they clearly showed evolved dramatically in the last year.
the intention of the parties that the
Commentators have queried whether
agreement should, is possible,
or not we have reached a point of a
be binding on them.
quasi-community of property regime.
tells us that, although sound legal
advice is obviously desirable, as long
as both parties fully understand the
implications of the agreement then
that may, in some circumstances, be
suffcient. The same approach may
apply to disclosure of the asset base.
Previously, we would have advised
clients that they could not agree to
give up rights to a matrimonial pot,
the details of which were not fully
known to them. However, we may
now be able to indicate, in certain
cases, that detailed particulars of
the other party's assets is not always
wholly necessary, as long as clients
have all of the 'material' information.
Of course, the standard vitiating
factors wil stil pertain: duress,
fraud or misrepresentation. These
factors wil negate any effect the
agreement might otherwise have.
More generally, a court may take
into account the parties' emotional
state and the particular pressure
We probably have not but, bearing in
Status of post-nups
The status of post-nuptial agreements
was thrown into the spotlght in
December 2008 when the Privy Council
considered the case of MacLeod v
MacLeod (2008). The Privy Council
acknowledged that although the
agreement may have lacked generosity
of provision for the wife, there was no
basis for interfering with it. A public
policy objection to post-imps was
removed, and such agreements could
now be binding in the English courts.
The Supreme Court wholeheartedly
endorsed the conclusion of the board
of the Privy Council in MacLeod, and
went further to say that there was no
material distinction between pre- and
post-nuptial agreements. They now
have exactly the same status.
In practice, post-nuptial agreements
are less common. When we were
awaiting the decision from the
Supreme Court in Radmaclier, as a
they may be under. This is an
'belts and braces' measure, many
important consideration and leads,
practitioners would suggest that
in a circular way, to ensuring that the
K v K checklist of factors is properly
adhered to.
both a pre-nuptial agreement and a
post-nuptial agreement. Obviously,
parties should consider signing
following the ruling in Radmaclier,
Foreign element
Of course, Radmacher is interesting for
a number of reasons, but particularly
18 Family Law Journal
"
I
I
this advice has changed, which is all
well and good given the diffculties
caused by raising the concept of a
mind the attitude taken by our near
neighbours in Continental Europe,
that may be where we are heading.
Of course, following a lengthy period
of consultation, the Law Commission
is due to publish its report on
Marital Property Agreements in
2012. It wil be interesting to see their
recommendations and the movement
that may bring. Watch this space! .
The following people assisted with this
article: Peter M Walzer, Walzer &
Melcher LLP (California); Charalambos
Artemis, Scordis, Papapetrou & Co LLC
(Cyprus); Charlotte Butruille-Cardew,
CBBC (France); Véronique Chauveau,
CBBC (France); Werner Martens,
Rechtsanwälte Dr. Pollzien, Martens &
Graf (Germany); Jennifer O'Brien, Mason
Hayes + Curran (Ireland); Avv Carlo
Rimini, University of Milano, Rimini Law
Firm (Italy); Adv Sarah E Fitz, Ogier
(Jersey); Dr Philip Manduca, R. Frendo
Randon & Associates (Malta); Jeremy
D Morley (New York); Simon Jefferson,
Trinity Chambers (New Zealand); Luís
Brito Correia (Portugal); Karen Lockhart
(Scotland); Zenobia du Toit, Miler du
Toit Cloete Inc (South Africa); Alberto
Cedilo, Alberto Perez Cedilo (Spain);
Alain Berger, Berger Recordon De Saugy
(Switzerland).
November 2011
It