Pre-nuptial agreements post Radmacher

Are they the sensible modern approach to marriage or an unromantic attempt to ring fence wealth and  avoid sharing?

The Judgement given by the Supreme Court today agreed that in the case of German paper company heiress Katrin Radmacher and ex-husband Nicolas the agreement should stand.

This was an eight year marriage where the wife had significant inherited wealth of a reputed 100 million which she brought to the marriage.

The Supreme Court did however acknowledge that the Court still holds the discretion to waive any pre or post nuptial agreement especially where it was unfair to any children of the family.

The Law Commission is due to report in 2012 about whether there should be any change in the law to make pre-nuptial agreements enforceable.  

Some may question why marry at all in these circumstances others why shouldn't there be an acknowledgment and agreement that each retain what they have at the start.

All needs to be viewed in the context of what is fair.

Short marriages should end with equality that each party leaves with what they started with. However, what of the medium and more importantly long marriages where there are children and parties have made different contributions. More frequently the wife stays at home to look after the children by a joint decision or returns to work only on a part time basis. Where is her ability to obtain and retain wealth?

Pre--nuptial agreements can be very effective in short marriage cases. Agreements also have the benefit of providing evidence as what assets each brought to the marriage and how they wished to deal with those at the start. They can also provide more certainty and reduce the stress and anxiety when the marriage ends as well as costs.

However, all agreements need to be entered into with each party having independent legal advice, neither must be pressurised to sign and there needs to be a "cooling off" period so that each can fairly consider that this is what they want. This then avoids the signing the day or week before the marriage day when other details and thoughts are likely to be in the forefront of their minds - dresses, flowers, stags nights etc!

Without doubt they provide a good starting point in the vent of marriage breakdown but should they be the binding force for the duration of a marriage when after ten years or more each have fully contributed to the union but one leaves significantly financially worse than the other?  Or does is protect the innocent party from the gold digger? For those who are entering into marriage not for the first time isn't it just the sensible starting point?

We should approach this always from the view that these are adults entering agreements who after independent advice must be capable of deciding what they want. We may need to consider that the future is always far from certain and that the agreements cannot be enforceable as of right.

It is always preferable to have something in writing signed with the benefit of independent advice than to have nothing. However, why in light of this ruling will those who have little wealth in comparison to their partner want to sign such an agreement. Perhaps the dilemma is now greater than before and the differing needs of each party highlighted. Love may be blind but the law is not.

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