Circumstances to consider when seeking to rely on a nuptial agreement

A nuptial agreement is an agreement made before or during a marriage or civil partnership that seeks to regulate a couple's financial affairs during the relationship and/or determine how their assets should be divided in the event of divorce, dissolution or separation.

The landmark case of Radmacher v Granatino makes it clear that certain characteristics of the parties and certain circumstances in the relationship may affect the weight the court attaches to a nuptial agreement in financial remedy proceedings. In other words, they will impact the likelihood of the agreement being upheld in full. These factors should be carefully considered when a party is seeking to rely on the terms of a nuptial agreement in later financial remedy proceedings.

The circumstances that may increase the chances of a nuptial agreement being upheld in full include:

• Short marriage with no unforeseen or unforeseeable changes of circumstances.
• No children.
• If there are existing children, the agreement does not prejudice their needs.
• Review clause allowing renegotiation of the terms of the nuptial agreement upon significant change in circumstances during the marriage, e.g. birth of a child.
• Parties were mature with a wealth of life experience when the agreement was signed.
• Parties are commercially astute and sophisticated in relation to legal concepts.
• Parties received independent legal advice.
• Parties have been married and divorced before.
• Both parties independently or sufficiently wealthy in their own right with no obvious predicament of need.
• Agreement is fair; each party's financial needs are met, any potential compensation claim for a relationship-generated disadvantage (where one of the parties may have seriously damaged their own ability to earn money, for the greater good of the family, with an obvious impact on their ability to achieve independent living) is addressed and any property argued to be non-matrimonial and not subject to the sharing principle (where spouses are equal parties in a marriage and should share the fruits of the matrimonial partnership equally) clearly defined in the agreement.
• Parties have a connection with or spent an appreciable part of their married life in a country where nuptial agreements are commonplace and binding.
• Parties with an international connection received advice on the agreement from an expert in the relevant jurisdiction.

Conversely, let’s consider some circumstances that may decrease the weight given to a nuptial agreement:

• Long marriage where unforeseen and unforeseeable changes to the parties' circumstances have occurred.
• Parties were young and inexperienced at the time of entering into the agreement.
• Children born during the marriage and agreement not reviewed following their birth.
• Needs of any existing children of the parties prejudiced by the terms of the nuptial agreement.
• Significant changes in the parties' circumstances during the marriage.
• Agreement is not fair; the agreement does not meet reasonable needs or one party's compensation claim for a relationship-generated disadvantage (where one of the parties may have seriously damaged their own ability to earn money, for the greater good of the family, with an obvious impact on their ability to achieve independent living) is not addressed in the terms of the nuptial agreement.
• One or both parties not commercially astute or legally sophisticated.
• One or both parties did not fully appreciate the implications of the agreement.

The amount of weight attached to a nuptial agreement will be dependent on the circumstances, which will be different in each case. Expert guidance is likely to be needed to consider properly the effect of any relevant circumstances and therefore whether it is appropriate to uphold the agreement.

If you find that you and/or your spouse or spouse to be are considering entering into a nuptial agreement or if you have one and are considering separation then we can help. Our specialist family law team can advise you in detail about nuptial agreements from both a legal and practical point of view.

Please do not hesitate to contact us should you require our assistance.