A ruling by senior judges on a German heiress's pre-nup agreement earlier this month could pave the way for pre-nups to become legally binding in England and Wales.

Until 2 July 2009

Pre-nuptial agreements had "persuasive" value only upon Courts when determining financial issues arising out of divorce. The Courts, frankly, paid little respect to pre-nuptial agreements.  They were a factor to be taken into account. That was all.

However, the Radmacher case (subject to any appeal) changes all of this.  Lord Justice Thorpe said "In future cases broadly in line with the present case on the facts, the Judge should give due weight to the marital property regime into which the parties freely entered."

The Court was dismissive of arguments often raised against validity of pre-nuptial agreements for example:

The Court did not consider it necessary for husband to have received independent legal advice. The Court did not consider it fatal that the wife did not make disclosure of her financial position. The Court did not hold that having children after the pre-nuptial agreement invalidated the pre-nuptial agreement.

Therefore, on the face of it, the Courts, in determining financial issues arising out of divorce, will now place far greater reliance upon pre-nuptial agreements.  However, the Radmacher case may be appealed.  Other Judges' may decide not to follow the decision in this case and may conclude that the circumstances of the case which they are deciding are different to the circumstances of the Radmacher case.

Lord Justice Rix said "This is a case in which the pre-nuptial agreement made by the parties should be given decisive weight." However, that does not necessarily mean that Judges' in other cases will give any pre-nuptial agreement the same decisive weight.

Plainly, the Radmacher case strengthens the pre-nuptial agreement position.  However, until Parliament and the Law Commission take appropriate steps to embody pre-nuptial agreements into the Law, they will remain vulnerable to attack.

It remains advisable for parties entering into marriage and seeking a pre-nuptial agreement to fully disclose their financial means and obtain independent legal advice and to work upon the assumption that even then the pre-nuptial agreement may not be given the same weight as was given by the Judges in the Radmacher case.

To discuss how Berg Legal can assist you with these issues, please contact Peter Woolf at peterw@berg.co.uk. Alternatively you can call Peter on 0161 833 9211

The information and opinions contained in this document are not intended to be comprehensive, not to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg Legal, or any of its partners or employees. Professional Legal advice should be obtained before taking, or refrain from taking any action as a result of the contents of this documents.