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An increasing number of people are entering into pre- nuptial agreements, otherwise known as pre-marital agreements. Pre-nuptial agreements are agreements made before marriage dealing with what will happen in the event of a divorce.
Traditionally, the courts have been reluctant to attach too much weight to such agreements on the basis that they were contrary to public policy and were an attempt to override the divorce laws.
Pre-nuptial agreements are still not binding in English law, however, following the judgement in the case of Radmacher v Granatino (October 2010) the court should uphold such agreements if the parties entered into it freely, with a full appreciation of its implications, unless in the circumstances prevailing, it would be unfair to hold the parties to the agreement. Although the court provides no definitive guidance on what is considered to be ‘unfair’, a pre-nuptial agreement will not be binding in the following circumstances:
If you do wish to enter into a pre-nuptial agreement, we advise that both you and your partner obtain independent legal advice and that you enter into the agreement at least 28 days prior to the marriage.
Post- nuptial agreements are agreements entered into after marriage dealing with what will happen in the event of a divorce. Following the judgement in Radmacher and Granatino, the legal status of a pre- and post- nuptial agreement is the same.