Perhaps unusually, the wife was by far the wealthier party and she had instigated the prenuptial agreement. The Supreme Court dismissed the husband's appeal against the Court of Appeal decision, which had given the pre-nuptial agreement decisive weight, and limited him to provision for his role as a father of the two children, and not for his own long term needs. Rather than the lump sum of £5.5m he was originally awarded, the husband got a home for the period of the children's minority, which he must then return to the wife, and a capital sum to provide him with an income for the same period.

The main points

  • Pre-nuptial agreements are still not binding in this country. The court ultimately decides what the financial arrangements for separating parties and any children will be when a marriage ends.
  • However, the court must now give appropriate weight to a pre-nuptial agreement, and the essential principle is this: 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.
  • Sound legal advice is desirable, as is full financial disclosure at the time the agreement is entered into. The important point is that each party should understand the implications of the agreement and have all the information that is material to his or her decision to enter into it.
  • Is the agreement fair? An agreement may include terms which conflict with what a court would otherwise consider to be fair – it may make provision which is different from that which the court would have ordered independently and the court should respect the autonomy of the parties in regulating their own financial affairs. However, the agreement is much less likely to be followed by the court where the terms are unfair from the start or when the marriage breaks down, for example due to an unforeseen change in circumstances.

The new test

  • Before Radmacher, the court had discretion to take pre-nuptial agreements into consideration as part of "all the circumstances of the case" or "conduct that it would be inequitable to disregard". In certain cases, prenuptial agreements were found to have magnetic force and proved determinative. Now, the court must have regard to the agreement, which will be given effect unless it would be unfair to do so.

Implications of Radmacher

  • The new test sounds rather like a rebuttable presumption that pre-nuptial agreements will be binding.
  • The decision will undoubtedly encourage more pre-nuptial agreements, and many more mid or post nuptial agreements, to refresh or modify pre-nuptial agreements, and ensure they deal with any unforeseen changes in circumstance and continue to be given sufficient, if not decisive, weight in the event of divorce.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.