Introduction
The current standing of pre-nuptial agreements is one of the most poignant and uncertain questions in English law. Before what is now the leading case of Radmacher v Granatino, [footnoteRef:1] English law had a strict view on nuptial agreements, arguing that they undermined public policy. However, more recently the judiciary has begun to take a different approach and seems more likely to respect the wishes of the parties who have made such an agreement. The aim of this essay is to identify and evaluate the law? s current position as to whether prenuptial agreements are respected by the courts, as well as consider under what circumstances they may be. [1: [2010] UKSC 42] The Development of Pre-Nuptial Agreements in English Law The most succinct definition of a pre-nuptial agreement is ? an agreement in contemplation of the failure of the relationship, seeking to legislate for the manner in which the parties? financial resources should be disposed, what limitations should be imposed upon the parties to apply for the exercise of the court? s discretion or what jurisdiction or forum they should submit to? .[footnoteRef:2] There are two main types of nuptial agreements worthy of note. Firstly, there are pre-nuptial agreements, which are agreements made before the marriage to determine how assets shall be shared. Secondly, post-nuptial agreements, which are made once the spouses are already married. The objectives of such agreements are somewhat simplistic. They aim to clarify how parties shall conduct their financial affairs before, during and after the marriage; they aim to add certainty as to the distribution of financial assets; they allegedly add protection of inherited assets and pre-marital wealth; and aim to limit the emotional strain of divorces by making it easier to adjudicate the distribution of the assets. [2: Sharp, C, (2008) ? Pre-nuptial agreements: A Rethink Required, Family Law, Vol 38, pp. 750] The history of the nuptial agreements in the United Kingdom has differed greatly from other jurisdictions. In English marriage, spouses were seen to be making a status that they cannot vary at will. [footnoteRef:3] In the mid-eighteenth century, for instance, spouses were seen as a union rather than two parties. [footnoteRef:4] In the UK, the position of pre-nuptial agreements was undisputed. For public policy reasons, they were considered invalid, for they anticipated the marital breakdown, which was contrary to the interests of society. [footnoteRef:5] [3: Cretney. S, (2003) The Family and the Law- Status or Contract? , 15 Child and Family Law Quarterly, pp. 403] [4: Blackstone. W, Blackstone? s Commentaries, Vol. 1(4th edn, Clarendon Press, 1770), pp. 442] [5: Thompson. S, Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and Practice, (1st edn, Bloomsbury Publishing, 2015), pp. 70] Historically, the United Kingdom? s position vis-? -vis nuptial agreements has been determined by ca...
