Prenuptial Agreements

Prenuptial agreements have in recent times been the focus of significant media attention. Whilst a prenuptial agreement is not strictly enforceable, the ground breaking case of Radmacher v Gramatino 2010, resulted in the Supreme Court providing significant weight to a prenuptial agreement that was freely entered into by both parties providing that the parties had fully appreciated its implications. The Courts have the power to implement terms of the prenuptial agreement unless considered to be unfair. A properly prepared prenuptial should give a large degree of protection to the economically stronger spouse even if it is not entirely enforceable.  The existence of a pre-nuptial agreement and the full circumstances which precipitated its formulation is one of the factors which a court can consider.

Upon a divorce, each case would be dealt with by the Court subjectively based on the facts of the case. Radmacher did highlight that the nuptial agreement cannot prejudice the reasonable requirements of the children. However the Court did acknowledge that the parties may enter this agreement to protect non-matrimonial assets, which can include assets obtained prior to the marriage or kept separate from the matrimonial assets. Further, the Court is unlikely to interfere with an agreement, which has made sufficient provisions for the spouse and any child.

Below is not an exhaustive list, but they are some of the factors the Court can consider, when deciding how much weight to show a prenuptial agreement.

  • If there is a child of the family – This could be either your biological child or a child you both treat as the child of the family.
  • Independent legal advice – Whether you both have received independent legal advice, especially the party which will be at financial loss.
  • Injustice – If the Court considers the enforcement of the agreement would cause significant injustice to you or your spouse or both of you or to a child of the marriage. An example of this could be if you and your spouse pooled money and brought an asset which was placed in your spouse’s sole name.
  • Financial Disclosure – If you or your fiancé have provided full financial disclosure of all your assets at the time the prenuptial agreement was signed.
  • Timing – It is important that this agreement is not signed at the 11th hour, this should ideally be signed three weeks prior to the marriage.

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