Prenuptial agreements - are they now enforceable?

Until recently, prenuptial agreements were used infrequently. Such agreements were fairly easy to wriggle out of and seldom used, being seen as unromantic and pessimistic. One of the spouses would argue a change of circumstances since the agreement was entered into and it would then often carry very little, if any,weight.

Society, however, is changing.There are now more second marriages, couples are marrying later in life and more people come into a marriage with established wealth. It therefore makes sense to try and protect that wealth from potential claims in the event of divorce.

Prenuptial agreements received a boost last year when The Supreme Court decided the case of Radmacher v Granatino and upheld a prenuptial agreement, giving the husband just £1million and the use of a home until the children have grown up - whilst he had sought to obtain a greater share of his wife's £100 million fortune.

Following this, courts will now look more closely at the circumstances in which the agreement was originally made. Each person should:

• enter into the agreement freely
• be under no undue pressure
• be informed of the implications of the agreement
• make full disclosure to each other
• have the opportunity to obtain legal advice

The agreement should also be flexible and provide for changes in circumstances, such as the birth of children or receipt of inheritance.

The Supreme Court decision reduces uncertainty for the wealthy where there is such an agreement but it does not eliminate it, as currently such an agreement is not binding.The more thought and care that goes into an agreement, the more watertight it is going to be. 

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