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.

Reuters/Ipsos poll: Views on gay marriage still divided after court ruling

WASHINGTON (Reuters) – As the dust settled on two major Supreme Court rulings this week that advanced gay marriage, a Reuters/Ipsos opinion poll showed that while about a third of Americans oppose the decisions, a majority are either in favor or had no strong opinion.

Forty-three percent of those surveyed agreed or strongly agreed with the court’s decision to strike down the 1996 Defense of Marriage Act, which limited federal recognition of marriage to that between a man and a woman. The poll of 410 people who were asked separate questions about each ruling was conducted from Wednesday, the day of the rulings, and Friday.

Written by Lawrence Hurley. To read the full article, click here. For more information on family law attorneys, visit our website

By the numbers: Same-sex marriage

(CNN) — The Supreme Court on Wednesday gave proponents of same-sex marriage two major victories — striking down parts of the Defense of Marriage Act that denied the same benefits provided to heterosexual spouses to legally married same-sex couples, and allowing same-sex marriages to resume in California.
Same-sex marriage rulings hailed as historic victory
DOMA ruling has financial impact
Poll: Majority backs same-sex marriage
Here’s a look at same-sex marriage in the United States, by the numbers:

Written by Caitlin Stark and Amy Roberts. To read the full article, click here. For more information on family law attorneys, visit our website

Ruling on Same-Sex Marriage May Help Resolve Status of Divorce

Adam Cardinal’s wedded life began happily in New Hampshire, where same-sex marriages are legal. It went sour three years later in Florida, where they are not.

Mr. Cardinal, who lives in Fort Lauderdale, separated from his husband several months ago. But the couple cannot get a divorce because, in the eyes of Florida officials, their marriage does not exist.

Returning to New Hampshire to sever the bond is not an option either. Although marrying can be accomplished with a brief visit there, a divorce requires residency in the state for at least a year.

Written by Erica Goode. To read the full article, click here. For more information on family law attorneys, visit our website

How Gay Marriage Won

Eager to be eyewitnesses to history, people camped for days in the dismal cold, shivering in the slanting shadow of the Capitol dome, to claim tickets for the Supreme Court’s historic oral arguments on same-sex marriage. Some hoped that the Justices would extend marriage rights; others prayed that they would not. When at last the doors of the white marble temple swung open on March 26 for the first of two sessions devoted to the subject, the lucky ones found seats in time to hear Justice Anthony Kennedy — author of two important earlier decisions in favor of gay rights and likely a key vote this time as well — turn the tables on the attorney defending the traditionalist view. Charles Cooper was extolling heterosexual marriage as the best arrangement in which to raise children when Kennedy interjected: What about the roughly 40,000 children of gay and lesbian couples living in California? “They want their parents to have full recognition and full status,” Kennedy said. “The voice of those children is important in this case, don’t you think?” Nearly as ominous for the folks against change was the fact that Chief Justice John Roberts plunged into a discussion of simply dismissing the California case. That would let stand a lower-court ruling, and same-sex couples could add America’s most populous state to the growing list of jurisdictions where they can be lawfully hitched.

Written by David Von Drehle. To read the full article, click here. For more information on family law attorneys, visit our website

Same-Sex Marriage and Religious Freedom, Fundamentally at Odds

In recent essays at Public Discourse, Mark Regnerus argued that same-sex marriage would harm marriage for everyone, and John Smoot argued that it would be bad for children in particular. Today I want to show the damage that redefining marriage does to religious freedom. At bottom, even the defense of religious liberty is a struggle over what is true and false about the meaning of marriage.

Should the truth about marriage—that it unites men and women so that children will have fathers and mothers—be defied by the laws of the land, we cannot expect the religious freedom of those who believe in that ancient truth to be respected under the new dominion of falsehood.

Written by Matthew Franck. To read the full article, click here. For more information on family law attorneys, visit our website

From ‘‘I Do’’ to ‘‘I’m Done’’

It’s not a subject that marriage-equality groups tend to trumpet on their websites, but gay couples are at the start of a divorce boom. One reason is obvious: More couples are eligible. According to a report by UCLA’s Williams Institute, nearly 50,000 of the approximately 640,000 gay couples in the U.S. in 2011 were married. (Another 100,000 were in other kinds of legal relationships, such as domestic partnerships.) The marriage rate, in states that allowed it, was quickly rising toward that of heterosexual couples: In Massachusetts as of that year, 68 percent of gay couples were married, compared with 91 percent of heterosexual couples. Another reason for the coming boom is that while first-wave gay marriages have proved more durable than straight ones (according to the Williams Institute, about one percent of gay marriages were dissolving each year, compared with 2 percent for different-sex couples), that’s not expected to last. Most lawyers I spoke to assume that the gap will soon vanish, once the backlog of long-term and presumably more stable gay couples have married, leaving the field to the young and impulsive.

Written by NY Magazine. To read the full article, click here. For more information on family law attorneys, visit our website