| FAQ - The Current effectiveness of Pre-nuptial | | | | give legal status to the prenuptial agreement, but |
| agreements | | | | the marriage itself took place in the jurisdiction of |
| How are Prenuptial agreements perceived by the | | | | England and Wales. The parties entered into a |
| courts? | | | | prenuptial agreement which specified similar terms |
| Historically in England and Wales, Prenuptial | | | | to that of the one in Crossley v Crossley (above) |
| agreements have been claimed ‘to be not | | | | with the exception that the contract specifically |
| worth the paper they’re written on’. | | | | provided that any assets or income accrued by |
| They have remained as an anomaly between the | | | | either throughout the course of the marriage, |
| UK and the USA’s perception on matrimonial | | | | would remain owned by that party. The husband |
| law. Whilst they are recognised in the USA, and | | | | was shown a draft of the agreement a week |
| indeed are constantly the highlight of infamous | | | | prior to the wedding, and did not seek legal advice |
| celebrity break ups, they are not perceived with | | | | and there was no disclosure of any of the |
| the same enamour in England and Wales. | | | | Wife’s assets. |
| However, the stance of the courts is slowly | | | | After their marriage in November 2008, the |
| beginning to align with that of their American | | | | couple went on to have two children and the |
| counterparts. In recent case law, prenuptial | | | | husband subsequently left his lucrative job in the |
| agreements have been recognised, and given | | | | financial sector, and began to study in the field of |
| substantial weight in determining the outcome of | | | | biotechnology, with the intent to return to the |
| ancillary relief. Although still not considered to be | | | | financial sector at a later date. He claimed that he |
| binding, the presence of one is regarded a | | | | would continue contributing to the household |
| significant factor under Section 25 of the | | | | expenses, but by March 2005, his savings were |
| Matrimonial Causes Act 1973. With the added fact | | | | completely depleted, and he requested that his |
| that prenuptial agreements are binding in many of | | | | wife solely provide for the household expenses |
| our EU neighbouring states, and that more people | | | | until he finished his studies. Eventually, in August |
| from the EU are seeking permanent residence in | | | | 2005 the couple separated and in July 2007 the |
| the UK, it seems logical that to give uniformity to | | | | decree absolute was pronounced. The Husband |
| the laws of Europe and legally acknowledge the | | | | sought to ignore the terms of the prenuptial |
| prenuptial. | | | | agreement, and sought to claim from his |
| If a prenuptial agreement is not binding, | | | | Wife’s assets. However, it was argued by the |
| what’s the point in having one? | | | | wife that to do this would contravene her rights |
| The significance of a prenuptial agreement has | | | | under Article 1 of the European Convention of |
| been made none so more apparent than in the | | | | Human Rights, and that beyond maintenance, the |
| recent decisions of Crossley v Crossley [2007] | | | | Husband should not be entitled to any further sum |
| EWCA Civ 1491 and Radmacher, formerly | | | | of money and that removal of any of her |
| Granatino v Granatino Sub nom NGv KR | | | | property in the form of a lump sum or otherwise |
| (prenuptial contract) [2009] EWCA Civ 649. | | | | would constitute improper interference with he |
| In the former case of Crossley, the terms of the | | | | property rights, as protected under the article. |
| prenuptial agreement were fully complied with in | | | | This was held by the courts, and her property |
| ancillary relief proceedings, and it was one of the | | | | was protected from any further claims against it. |
| first instances in the England and Wales jurisdiction | | | | However, this did not mean that the Wife was |
| that the courts fully recognised the importance of | | | | free from providing any ancillary relief, and an |
| the agreement. However, as prevalent of this | | | | order was made for her to provide £5.56M in |
| case was in promoting the status of the | | | | total maintenance to her Husband and to |
| prenuptial agreement from influential to binding, | | | | accommodate his proprietary needs in both the |
| the courts were able to hide behind the excuse, | | | | UK and Germany, when caring for the Children of |
| the even without the agreement, a similar result | | | | the relationship. On top of this, the Wife was |
| would have been achieved. Mr and Mrs Crossley | | | | ordered to pay a further £70, 000 a year to |
| had been married a little over a year, both | | | | meet the needs and costs of their children. |
| bringing substantial wealth into the marriage, | | | | However, this order was determinable on her |
| although Mr Crossley had significantly more. They | | | | children reaching majority and completing their full |
| had both entered into a prenuptial agreement | | | | time education. |
| which stated that both parties would leave the | | | | But in the Gratino case, the spouse still had to |
| marriage with whatever assets they brought with | | | | pay maintenance- why was that? |
| them into it. In their relationship, they bore no | | | | It is true that the spouse still had to pay |
| children, and on the irretrievable breakdown of | | | | maintenance, but a prenuptial agreement can not |
| their marriage, Mrs Crossley sought to have the | | | | restrict or prevent maintenance orders. They are |
| terms of the prenuptial set aside. The courts | | | | there to protect a persons assets that they |
| identified that this ploy was simply such that Mrs | | | | possessed or acquired before or during the |
| Crossley could exploit the state of English law to | | | | marriage. The most intriguing thing about this |
| obtain a portion of Mr Crossley’s wealth. Also, | | | | case, is that the Wife’s assets remained hers, |
| given the fact that there were no dependants of | | | | and the Husband was not entitled to any of her |
| the marriage, and it had been for such a short | | | | estate, as agreed in the prenuptial agreement. |
| amount of time, it made logical sense to uphold | | | | The fact that the European Convention of Human |
| the terms of the prenuptial. | | | | Rights was highlighted also shows the significance |
| However, more recently, the prenuptial | | | | of the UK being part of the EU. Although the |
| agreement has been given a recognition that it | | | | English and Wales jurisdiction does not recognise |
| has never before received in the history of | | | | prenuptial agreements as a legal document, to set |
| Matrimonial law in the English jurisdiction. In the | | | | it aside without consideration would be a breach |
| case of Grantino v Grantino also known as NG v | | | | of EU law, and in particular, a breach of Article 1 |
| KR (prenuptial contract) a Husband from France | | | | of the first protocol of the convention. |
| had entered into a prenuptial agreement with his | | | | So prenuptial agreements are they still not |
| Wife from Germany. Both countries jurisdictions | | | | legally binding? |