The Supreme Court’s ruling in Radmacher v Granatino has had a significant impact on nuptial agreements in financial remedy proceedings. This article will examine the weight given to nuptial agreements in the financial remedy proceedings, what circumstances would render it unfair to enforce such agreements, and whether public policy issues are relevant.

In Radmacher v Granatino, the Supreme Court held that the parties to a marriage could not enter into an agreement that purports to override section 25 of the Matrimonial Causes Act 1973 (MCA 1973) and the court’s discretion to apply the factors set out at section 25(1) of that Act when deciding an application for financial remedies on divorce. Thus, nuptial agreements are not binding, but a court must give appropriate weight to the terms of a nuptial agreement when deciding how to exercise its discretion.

The weight given to a nuptial agreement in financial remedy proceedings will depend on the extent to which the facts of an individual case meet the three-stage fairness test set out at paragraph 75 of the Supreme Court judgment. 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 the agreement.

The Supreme Court emphasised that a party may be left in a “predicament of real need” if the terms of the agreement leave one party in such a state, on the assumption that the parties could not have intended that when the agreement was signed. This would render it unfair to hold the parties to the agreement. The case of Luckwell v Limata [2014] EWHC 502 (Fam) demonstrates that such circumstances can arise even when the pre-nuptial agreement has been meticulously prepared and meets all the criteria for fairness expounded in Radmacher.

In obiter dictum, the Supreme Court concluded that there is no difference in legal status between pre-nuptial agreements and post-nuptial agreements. Both are capable of being legally enforceable contracts. The argument that agreements providing for future separation are void because they are contrary to public policy is obsolete and should not apply to pre-nuptial or post-nuptial agreements. Thus, nuptial agreements should no longer be regarded as contractually void for public policy reasons.

When assessing the fairness of a nuptial agreement, the court should consider each party’s housing and other financial needs, as well as a wide range of other factors, such as available resources, the parties’ ages, earning capacity, and the standard of living. The court’s overriding consideration should be fairness, as established in the cases of White v White [2000] UKHL 54 and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24.

In conclusion, while nuptial agreements are not binding in the UK, the courts must give appropriate weight to them when deciding how to exercise their discretion in financial remedy proceedings. The weight given to a nuptial agreement will depend on whether the agreement was freely entered into by each party with a full appreciation of its implications and whether it would be fair to hold the parties to the agreement. The court’s overriding consideration should be fairness, taking into account each party’s housing and other financial needs and other factors such as available resources, the parties’ ages, earning capacity, and the standard of living. Public policy issues are no longer relevant when considering the validity of nuptial agreements.

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