The recent case of Radmacher -v- Granatino concerned a prenuptial agreement and was greeted somewhat predictably in the media as a "landmark" decision confirming that prenuptial agreements entered into by parties prior to their marriage would now be binding on the courts in this country when that marriage broke down.
On closer examination however it appears that this is not the precise situation.
When a marriage breaks down and the parties apply to the court for an order on how their respective assets are to be distributed, the court is required by Section 25 of The Matrimonial Causes Act 1973 to consider the criteria set out in that section.
The criteria do not mention prenuptial agreements but over the last few years properly negotiated agreements which are not tainted by abuse or manifest unfairness have been given increasing weight by judges in order to provide a fair outcome to the parties.
Nevertheless the courts are still bound by the Section 25 criteria and if there is to be a departure from that position as Thorpe LJ suggested in Radmacher "wholesale reform is for Parliament and not the judges".
Therefore until that reform takes place practitioners cannot say to their clients that prenuptial agreements will be binding. However if the agreement is not manifestly unfair and has been properly prepared after both parties have sought independent advice then all that can be said is the agreement might be upheld in proceedings arising out of the breakdown of the marriage.
Our advice to couples contemplating marriage would be to take advice on whether prenuptial agreements are appropriate in the circumstances.