Pre-nups: courts and policy

For the past couple of years, since the landmark legal case of Radmacher v Granatino, the pre-nuptial (and pre-civil partnership) agreement has been seen as being as close to a binding agreement as the family courts will allow. The test for upholding an agreement entered into either before or during marriage as set out by the Supreme Court in that case is 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 their agreement”.

Circumstances which a court will consider when deciding whether, to uphold an agreement, and to what extent, include whether there has been coercion or pressure applied to one or other party to enter the agreement. Also, the presence or absence of full financial disclosure and legal advice goes to the question of whether each party has a full understanding of the consequences of the agreement. Whilst lack of legal advice or financial disclosure are not absolute bars to an agreement being upheld, we would not recommend anyone sign an agreement in their absence.

Finally, when considering whether it would be fair to uphold the agreement, a court will look at whether the children of the relationship would be adversely affected by it being enforced, whether they have been adequately provided for, and whether enforcement would leave one or other of the parties to the agreement in dire financial need. If children are left without provision, or one party left in real need, then the court will be less likely to uphold the agreement.

Written by cflp.  To read the full article, click here.  For more information on family law and divorce matters in San Diego and/or Riverside county, please visit our website at, and follow us everywhere @jbwrookslaw.


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