Pre-Nuptial Agreements.

mand3366

New Member
#1
Timothy Scott QC, 29 Bedford Row Chambers

The much awaited decision of the Court of Appeal in Radmacher v Granatino [2009] EWCA Civ 649 was handed down on 2/7/09. It is undoubtedly the most important decision to date on pre-nuptial agreements in English law. Thorpe, Rix and Wilson LJJ all gave full judgments: the judgment of Wilson LJ sets out the factual history and is probably best read first as a matter of convenience. Each of the three judgements is penetrating and contains wide-ranging observations on ancillary relief law.

And yet the law on pre-nuptial agreements is still in a state of confusion. Why? Principally because the Court of Appeal in Radmacher has taken a significantly different view on a number of points to that taken by the Privy Council in MacLeod v MacLeod [2008] UKPC 64; [2009] 1 All ER 851. This is highly unusual. MacLeod was an appeal from the Isle of Man, but the relevant statutory provisions in the Isle of Man were identical to those in the Matrimonial Causes Act. In these circumstances a decision of the Privy Council is tantamount to a decision of the House of Lords and is usually treated as binding in practice on the Court of Appeal. However, in Radmacher the Court of Appeal felt able to take a different line. If only for this reason, it seems likely that the case will be subject to a further appeal to the Supreme Court.

Subject to a further appeal, some of the key points which emerge from the Court of Appeal judgements are:-

•Although the public policy objections to pre-nuptial agreements remain in principle, their practical consequences have diminished to the point of virtual disappearance.
•In MacLeod, the Privy Council distinguished between pre- and post-nuptial agreements, partly on the basis that S34-5 Matrimonial Causes Act covered post - but not pre-nuptial agreements. The Court of Appeal did not accept that there is a significant distinction and Wilson LJ went so far as to call those sections ‘dead letters’ (#134): a bold observation since they form part of a statute which is in force and have been left in place during successive amendments to the statute in its original form.
•While a pre- or post-nuptial agreement cannot be strictly binding, it is likely to be given substantial weight provided that it cannot be impugned on contractual grounds such as fraud, misrepresentation or undue influence. Although the Court declined to accept that an agreement should be treated as ‘presumptively dispositive’, the effect of the judgments comes very close to that proposition.
•To the extent that an agreement makes inadequate provision for a spouse as parent, this can be remedied by making an award for the duration of the children’s needs on a basis analogous to awards under Sch. 1 Children Act. In adopting this approach the Court of Appeal followed MacLeod, albeit not expressly.
•Neither lack of independent legal advice nor absence of full disclosure will necessarily deprive an agreement of value: particularly if it is clear on the facts of a given case that advice or disclosure (as the case may be) would have been unlikely to make any difference to the fact or the terms of the agreement.
Thorpe LJ in his judgment stressed the European dimension to the case. Marriages in most, if not all continental European countries are subject to a matrimonial property regime which includes a pre-nuptial agreement. In Radmacher the parties had entered into a tailored agreement under German law which inter alia precluded either from making any claim against the capital or income of the other in the event of divorce. However, it should be noted that the law of some jurisdictions does not permit spouses to contract out of maintenance claims. It is always necessary to study the terms of any agreement and the law under which it has been made in order to understand its limitations as well as its terms.

The judgments amount to a collective plea for statutory reform. The matter is already in the hands of the Law Commission. It must be hoped that Parliament will not duck the need for reform. It is surely now obvious to all family lawyers that England is out of step with most jurisdictions both in the civil law and common law traditions and that our law is both out of date and in a state of confusion.
 
N

nela

Guest
#2
Mandy I dont understand...what does it actually say in a commomn language please?
 

mand3366

New Member
#3
In Laymans terms it is a law suit that adhered to a Prenuputial agreement BUT it is still likely to go before the Supreme court.

It could be a landmark case in making prenuptial agreements legally binding. Read the last paragraph as that clearly outlines the present law.

Still what I told you in PM is relevant to you AT THE PRESENT TIME!! Email me Nela if you need to know more xxx
 

missmetal

Well-Known Member
#4
Has anyone had their partners sign a prenup before?

Since my man currently owns nothing except the clothes on his back, and I have all the assets Im thinking its a good idea to set one up before we get married. We've spoken about it and he's agreed to it, although Im sure it will need explaining again as he was not too keen on the reasons behind it (I'm previously divorced, so I see the need)

Anyone else done one? Canada has an easy online form to complete and translates it all into the legal jargain. I was thinking i'd get it done and signed over there in front of court on the day we get married too.
 

ROULLA

Registered User
#5
Hi Missmental hope that you are in good health! I have not done this but we have been together for years and my husband knows that whats his is myn and whats myn is myn..:D only joking ..

If you think that this is what you want then why don't you at least wait until you are married and then eventually comes over to Canada then it would be easier...:) Unless you are planning on moving to Tunisia then thats a different story..
 

missmetal

Well-Known Member
#6
Ya, I guess I could wait. But as usual, things often get put off and delayed. Because of previous bad experiences with ex hubby, Im just cautious that he could change after we are married. So I wanted some protection in some way....if that makes sense. 99% feels he wont change, but you just never know :)
 

ROULLA

Registered User
#7
Ya, I guess I could wait. But as usual, things often get put off and delayed. Because of previous bad experiences with ex hubby, Im just cautious that he could change after we are married. So I wanted some protection in some way....if that makes sense. 99% feels he wont change, but you just never know :)
Then if i was you i would wait, no one is rushing and everything that you have will still be there, so forget about that for now and just think about your wedding:) hope that you have a fantastic time...
 

missmetal

Well-Known Member
#8
Thanks all for the info.

Since you mentioned the two types of contracts in Tunisia...they should be in English when I marry right? So that I know what I am signing?

As we will be living here, I believe a prenup does stand in Canada. I think for now its best that we dont do the sharing contract until he's proved that he can provide for the family (when we eventually have kids) and we can share our assets that we jointly gain together.

Delene, sorry to hear about your situation...thanks so much for sharing. This is helpful information, and although my BF hates it when Im logical about these things, someone has to be. I'm sure he'd be if he had all the assets :)
 

missmetal

Well-Known Member
#9
I think the law in Canada will like the law in the UK. If we are living here, we will get divorced here....if it comes to that...hopefully not tho! So the law here will determine how to split assets. But one of my mates did tell me tho, sometimes they dont always hold too much weight here either. I guess it depends on the situation.
 

1989

Well-Known Member
#10
I think the law in Canada will like the law in the UK. If we are living here, we will get divorced here....if it comes to that...hopefully not tho! So the law here will determine how to split assets. But one of my mates did tell me tho, sometimes they dont always hold too much weight here either. I guess it depends on the situation.
My boyfriend was told that he has to undergo two divorces and two separations of assests.
He divorced in England, but hasn't been able to go to Tunisia for 3-years, so will be sorting that bit (yes, like it's no big deal...... :rolleyes:) when we go in October.
 

missmetal

Well-Known Member
#11
My boyfriend was told that he has to undergo two divorces and two separations of assests.
He divorced in England, but hasn't been able to go to Tunisia for 3-years, so will be sorting that bit (yes, like it's no big deal...... :rolleyes:) when we go in October.
What a nightmare. although thinking about it, its kinda the same anywhere. If you've registered your marriage in another country, then you need to notify that country too of your divorce I suppose. I still have to show my divorce cert from time to time for things that are left in my married name that i cant seem to change out.
 

missmetal

Well-Known Member
#12
Ya, its kinda difficult. Its tricky with different nationalities, but the similar issues and sometimes the same issues happen with people from the same countries. Its good tho that there is a forum and people can decide for themselves.

As expected, my other half seems to think all im concerned with is money and i keep complaining about it and this prenup set off an argument. He seems to think im being negative yet, how can I love him....oh the immaturity! :)

Its ok to not care about money when u have none, but i have paid for mostly everything, and I work damn hard for what I have. I think he's really genuine in his intent to be the bread winner but he's not had the chance to yet of course. I dont feel he's got bad intentions, i think he's a romantic, young and clueless to the real world.

I on the other hand have experienced marriage and divorce and trying to explain that to a complete romantic who wants to say with 100% certainty that we will survive it all...is hard to convince that u just never know.

I've tried to explain that if we have the contract and never divorce then we've succeeded and the contract means nothing, but if we divorce it in fact protects us both. I could rack up a crap load of debt from shoe shopping (thats pretty easy to do :) ) and he'd be liable for half of it without a contract. :)

hopefully that gets thru....lol!
 

Jenny

Well-Known Member
#13
Has anyone had their partners sign a prenup before?

Since my man currently owns nothing except the clothes on his back, and I have all the assets Im thinking its a good idea to set one up before we get married. We've spoken about it and he's agreed to it, although Im sure it will need explaining again as he was not too keen on the reasons behind it (I'm previously divorced, so I see the need)

Anyone else done one? Canada has an easy online form to complete and translates it all into the legal jargain. I was thinking i'd get it done and signed over there in front of court on the day we get married too.
Congrats to your upcoming wedding!

Me and my ex husband had a prenup (very common to have it here in sweden, most of my friends has that). We had one as was supposed to have been registered with the swedish authorities at same time as the marriage was registered (but due to things as happened after our marriage I never registered neither of it in sweden). So I think you need to check with the canadian authoroties to make sure it will be valid there because in tunisia it won't be valid.

We was married in tunisia and had written in our marriage contract that our assets were separated.

But in case my husband hadn't agreed to a divorce, I would have had to pay him a sum decided by the judge at court. Based on how long we've had been married and in case he would have been financially dependent on me. I understand this law since I think that it most of the times protects women as perhaps has stayed home with the children and has no or very little income.

Sorry if I repeated something someone else already had written, too tiered to read the whole thread.

Good luck
 

missmetal

Well-Known Member
#14
Well, after a much longer discussion with my BF...sms'ing does not help...so I called. And of course, so much was lost in bits and bytes over the sms'ing.

He has no problems signing anything. His main argument to me was that i sounded like I was complaining about him not having money and making him feel small. Which was not the intention of course. But I had to explain that after a year of knowing each other, planning a wedding, love is not enough to be 100% certain that we will survive all the challenges for when he moves over.

People do change. And for all those women/men in current successful relationships with any nationality...that is wonderful and amazing. But its human nature that when people start to fight they can get really nasty....and you dont really see that side until the relationship has reached its end.

So my recommendation, is always have a backup plan if u dont have a prenup already :)

Thanks all for the info and advice. I'll be sorting out my prenup this weekend. I'll definitely register my wedding at the Canadian Auth in Tunisia...and the UK:). It will be known WORLD WIDE....(muuhahahahah...evil laugh)
 

sarahbelle

Active Member
#15
pre nups

what did you all agree to with your pre nuptial at your weddings ????

to have it seperated or joined ???

just curious and what exactly does each one mean ???
 
L

Lissy

Guest
#16
It worries me intensely that people are getting married and have NO idea of what they are signing. Do you guys get an interpretor (who is NOT your hubby) so you know what is going on? Does anyone inquire BEFORE the marriage about the difference between communal and separation?
 

mand3366

New Member
#17
United Kingdom: Pre-Nuptial Agreements Given ‘Green Light’ By The Supreme Court

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The Supreme Court has held a French husband, Nicholas Granatino, to a pre-nuptial agreement which he signed prior to his marriage to German heiress, Katrin Radmacher.

Mr Granatino challenged the decision of the Court of Appeal which had significantly reduced the financial award he received from the High Court. The Supreme Court dismissed his appeal and has clarified the law relating to pre- and post-nuptial agreements.

Any suggestion that pre-nuptial agreements are not binding in England and Wales has been overturned as a result of the decision. The presumption now is that they are binding, unless they are unfair.

The Supreme Court has swept aside the view that pre-nuptial agreements are contrary to public policy. All of the circumstances of the case will be taken into account. The Court retains its discretion to overrule the agreement although weight will now be given to individual autonomy. The Supreme Court emphasised that the key is 'fairness'. Each party should intend that the agreement should be effective; should be fully aware of the implications of entering into the agreement; should have all of the information that is material to his or her decision; and should intend that the pre-nuptial agreement should govern the financial consequences of the marriage ending.

When assessing whether the terms of a pre-nuptial agreement are unfair, the Court will consider several key factors including whether the needs of one spouse or the requirement for compensation for sacrifices made during the marriage justify a departure from the terms or whether the terms prejudice the reasonable requirements of any children of the family.

In this case the Supreme Court decided the agreement was freely entered into and that both parties fully appreciated its implications. Accordingly, it was only fair to depart form the agreement to the extent necessary to cater for the needs of the children.

The Supreme Court has therefore endorsed the importance of pre-nuptial agreements in relation to the treatment of inherited assets or assets acquired by one party prior to the marriage. The Court has indicated that the shorter the marriage, the more likely the terms will be upheld in their entirety. The preservation of landed estates, ancestral homes and farms is of utmost importance to landowners and their families. Those contemplating marriage where there are significant inherited assets or inheritance prospects at stake should consider having a pre-nuptial agreement given the greater protection it should now afford in the event of divorce.

[ http://www.mondaq.com/article.asp?articleid=116160&login=true&newsub= ]
 

mand3366

New Member
#18
Article: Pre-nuptials - For Richer for Poorer (United Kingdom)

Summary

The long awaited decision in Radmacher v Granatino 2010 UKSC 42 handed down by The Supreme Court on 20 October 2010 is very important reading for anyone about to get married (and their advisors), those who already hold a pre-nuptial agreement, and those currently considering inheritance tax planning.

Background

When dividing assets on divorce, the English (and Welsh) courts operate a discretionary system. As a result, litigated outcomes are uncertain, potentially divisive and very expensive in terms of legal costs. The system is generally seen as advantageous to the spouse who did not create the wealth in the relationship, and levels of maintenance payments are very generous when compared with many other European countries.

Pre-nuptial agreements (which provide how any future divorce settlement will be dealt with) have been commonplace in many other countries for some time but there has always been an issue in England as to whether they are of any worth.

Summary of outcome

Radmacher is the clearest statement yet that the start point will now be that the divorce courts will do all they can to ensure such agreements are upheld. In addition it provides approval to the idea that an agreement entered into after a marriage has taken place (a post-nuptial agreement) can provide identical protection to a pre-nuptial agreement.

Case facts

The simple facts were that the German wife married her French husband in 1998. She was extremely wealthy and asked him to sign a pre-nuptial agreement which he did, albeit she did not provide any financial disclosure and it was not translated into his native French. The document provided that he would get nothing in the case of divorce. It did not deal with what would happen if they had children.

When the couple separated 8 years later in London and litigated to resolve their claims, the husband was awarded approximately £5.6m of their £30m fortune at that time. The very experienced High Court Judge gave a lower award than otherwise would have been the case, because Mr Granatino had signed the agreement, but on the basis that its terms were not fair as they now had two children, and he needed capital to provide a home for them, as well as an income.

The wife appealed and the Court of Appeal held that the judge had not given sufficient weight to the pre-nuptial agreement. They therefore varied the order so the husband received a home to live in whilst the children grew up but then had to return it to his ex-wife. The case was appealed to the Supreme Court.

Judgment

The Supreme Court held that:

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 that agreement.

In defining fair the court felt that:

1 Any agreement could not prejudice the reasonable requirements of any children.

2 The Court should respect peoples right to self regulate their financial affairs; to do otherwise would be "paternalistic and patronising".

3 It was a good and fair way to protect property not accumulated during the marriage, including an inheritance.

4 Any agreement was more vulnerable if it did not provide for the other party's basic reasonable financial needs. In Radmacher the agreement was varied to deal with those needs.

5 The Court made it clear that in each case the Court still had to consider whether the agreement was fair, but the presumption is now very much that the starting point is the agreement stands unless the court is persuaded otherwise.

6 In this case the pre-nuptial was created by a German lawyer and was intended to be determined under German law. It is clear that the English courts will now recognise foreign pre-nuptials if they meet the 'fairness' test outlined above. It is therefore crucial that anyone who has entered into a foreign pre-nuptial agreement (marriage contract) has their agreement reviewed by an English family lawyer if they are living in England.

7 A post-nuptial agreement can be equally effective and is not only appropriate after a couple have separated. Many parents worry about passing property to their offspring to save inheritance tax when that capital could then be lost in a subsequent divorce settlement. A post-nuptial agreement excluding that property from any subsequent settlement would now appear very sensible planning for parents whose offspring are already married with children.



[Ref: Clarke Willmott LLP ]
 

Marilyn

New Member
#19
To be honest from what I have read of UK divorce, if you are a couple with no kids etc etc you keep what is in your name basically, if you had a house already money in the bank, if it's got your name on it it's yours, if you've bought a house together, both been contibuting to the mortgage or bought stuff after marriage and can't agree on it that is what gets scrapped over.......although I suppose someone could go after you with legal aid if they had ILR, but since I have no need for that with my partner if we split he would have to return to Tunisia and I'm assuming I would be safe?????

I think however it is ALWAYS smart to protect yourself, these cases refer to millionaires but what about honest hardworking people who want to protect what they have accumulated........

I have kind of given up on this for now too complicated:confused::confused::confused:, I spoke to my partner about things and we are holding off marriage for now, thankfully.............but any insights........
 

tazek

New Member
#20
Malek Rejiba

Malek Rejiba
Avocat à la Cour
Rue 22 Janvier 1952
Imm Gloulou II – 4000
Sousse - Tunisia

Email: [email protected]
Web: www.malekrejiba.com
Tel : 00 216 73211637 00 216 73211637
Fax : 00216 73330
I phoned this man today but found him a bit offish! Anyway finally got married and signed the agreement to share which was produced during the ceremony. Didnt get to see anything beforehand;as I was told it;s not traditional for the woman to visit the man to organise the marriage. What I would like to know is can you add a proviso or what the Americans call a Modification agreement afterwards? I.m happy with the share thing because I don;t have anything; but as time goes on; I ,may inherit.What I want is some sort of clause that if he should leave me;he gets nothing and vice-versa. Sorry about the strange grammer but I;m typing on a french/tunisian keyboard and can;t for the life of me find the comma!
 
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