Briefing

Pre-nuptial and post-nuptial agreements – the Inheritance (Provision for Family and Dependants) Act 1975

Pre-nuptial agreements have been in the news recently. Under some systems of law, these are recognised as legally binding. However, under English law they are, in principle, contrary to public policy because they purport to restrict a party to a marriage or civil partnership from seeking some, or all, financial provision from the other in matrimonial proceedings. This is seen as tying the hands of the Court by unacceptably restricting the very wide powers otherwise available. However, as well as having very wide powers as to the orders it may make, the Court also has a wide discretion as to the factors that may be taken into account, and it has become clear as a result of the Supreme Court decision in Radmacher v Granatino [2010] UKSC 47, that where the parties have entered into a pre-nuptial agreement, particularly one that would be legally effective under an appropriate or system of foreign law its terms may be taken into account and the result may even be that the Court will give practical effect to its terms.