Pre-Nuptial Agreements- a change in the law?

Much has been made in the press of the long-awaited decision of the Supreme Court in the divorce case of Radmacher v Granatino which was delivered recently. The Supreme Court decided by a majority of 8 – 1 that the Pre-Nuptial Agreement made between a German multi-millionairess and her French husband prior to their marriage in 1998 should be upheld. The Agreement was expressed to be subject to German law but the parties were living in England by the time of their divorce, hence the divorce took place here. The parties separated in 2006. In England, unlike some other European states, only English law is ever applied. A couple lives within the jurisdiction of the English court and the court applies English law; not the law of the country in which the Agreement was made, nor the law of the parties’ nationalities.

It remains the case that Pre-Nuptial Agreements are not automatically binding in law in England and Wales. Such an Agreement is only one factor for the courts to take into account when considering the factors set out in section 25 of the Matrimonial Causes Act 1973 which govern the financial settlement that a court will order. The overall aim is to achieve fairness which, for most parties, means meeting the parties’ “reasonable needs”. If a Pre-Nuptial Agreement is considered fair by a court, given the circumstances of the parties on their divorce, it will be upheld. If it is not, and needs take precedence, then it may still be taken into account in determining the final outcome even if the arrangement is not fully applied.

In this divorce case, it was considered that it was fair to hold the couple to the Agreement even though Mr Granatino had not had independent legal advice, which we would always recommend. The court commented that Mr Granatino was extremely able and his own needs would in large measure be indirectly met from the generous relief given to cater for the needs of his two daughters until the younger reaches the age of 22. Fairness did not entitle him to a portion of his wife's wealth, received from her family independently of the marriage, when he had agreed he should not be so entitled when he married her.

It has to be remembered that this case is far from typical and in many cases, the court would not consider it fair for the parties to be bound by a Pre-Nuptial Agreement, particularly if their circumstances had substantially changed after, say, a long marriage with children. In more typical cases of this type, needs would dictate that one party should receive more generous financial provision than might provided by the Pre-Nuptial Agreement. The Law Commission is currently considering whether to make Pre-Nuptial Agreements automatically binding. The challenge will be to ensure that proper consideration is given to ensuring that less wealthy parties are not adversely affected by any change in the law.

For more information on this subject contact Deborah Prance.

D I Y Divorce - Who needs a solicitor?

There is a plethora of guidance on the web on how to do your own divorce, including packages which provide the forms for a relatively low fee. The problem with these websites is that they are alright for couples who have had a very short marriage, have had no children and who have no assets. But these couples are in the relative minority. However, even these couples should give consideration, and in may cases seek advice on the impact of divorce on for, example, welfare benefits and immigration.

In most cases, a relationship breakdown can have profound consequences on the financial status of the parties which needs to be considered, preferably before concluding the divorce. By applying for decree absolute prematurely, the petitioner can terminate their entitlement to benefit under their spouse’s pension.

Consideration also needs to be given to what should happen to jointly owned property. It is rarely advantageous for the matrimonial home to continue to be held in joint names after the end of the marriage. Thought should also be given to making another Will.

As well as the above consequences, of which in some cases the parties may be wholly unaware, there are the more obvious issues such as the arrangements for any children including residence and contact. Unfortunately, whilst in many cases the parties are able to resolve these between themselves, in many others professional assistance is required whether from a mediator or a solicitor.

At Brooks & Partners, we have many years experience of dealing with all these issues. Just by taking advantage of our initial half hour free appointment many of them can be highlighted. We recommend that anyone reading this article who may be going through a relationship breakdown of any kind arranges an initial appointment with Deborah Prance by calling 01276 681217 or emailing her at deborah@brooks-partners.co.uk

Lasting Powers of Attorney

Whilst the press often emphasise the importance of preparing Wills which determine where your assets pass when you die, relatively little is heard about Lasting Powers of Attorney, yet they are just as important as Wills.

Lasting Powers of Attorney enable you to determine who you would like to deal with your property and finances and also your health and welfare issues in the event that you become mentally incompetent or physically unable to manage your own affairs.

Lasting Powers of Attorney (LPA) replaced Enduring Powers of Attorney (EPA) in October 2007. This means that you can no longer create an EPA but people with EPAs prepared prior to October 2007 need not worry as their documents are still legally valid.

Whilst EPAs only give control over finances and property, LPAs go further in allowing your nominated attorney to take responsibility for your health and welfare decisions. Therefore whilst the LPA invites us to consider some uncomfortable choices, it gives us an opportunity to take control of our future in a way that has not been possible before.

If you haven’t prepared either an EPA or an LPA and you become mentally incapable, then your next of kin does not have an automatic right to manage your affairs for you. To be given such a right your next of kin must apply to the Court of Protection to become your “Deputy.” A Deputyship application can be can be a longwinded, costly and stressful process so it is advisable not to wait until you are beginning to lose the ability to manage your affairs before you consider making an LPA.

Do not to leave your affairs to chance – call or e-mail for professional and friendly advice.

Shirah Real

Tel: 01276 681217

Email: Shirah.real@brooks–partners.co.uk