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  1. Wealth
January 12, 2011

Withers on pre-nup consultation

By Spear's

Suzanne Todd, partner in the family team at Withers LLP comments

Suzanne Todd, partner in the family team at Withers LLP comments:

“Pre-nups have become a hot topic in recent years.  In the past there was a perception that pre-nups are unromantic but this is changing.  More and more parties are entering into pre-nups now.

“The recent Supreme Court decision in Radmacher v Granatino was a shot in the arm for pre-nups but we still don’t have a blanket rule to apply in every case.

“Why should pre-nups not be binding and a couple held to what they agree? They are binding in most US states, all continental European countries, Latin America, Canada, Australia and New Zealand.

“The coalition Government has indicated a desire to promote marriage and the family.  Enforcing pre-nups will go some way to achieving this by encouraging open discussions about money between future spouses.

“Radmacher does not mean that pre-nups are binding in all cases and it has left many unanswered questions – a new law would resolve these uncertainties.

Michael Gouriet, partner in the family team at Withers LLP adds:

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“The Courts have shown a willingness to promote individual autonomy, but what is the role of the Court if not to ensure fairness between divorcing parties?  A marriage cannot be compared with a business transaction and enforcing a pre-nup is not the same as enforcing a contract.  The concepts of justice and fairness must come into play.

“England has acquired a reputation as the ‘divorce capital of the world’.  This is an opportunity to prevent people playing the system by moving to England to get more money on divorce than they would get overseas.

“Careful thought needs to be given to how best to protect financially weaker spouses from being pressurised into signing up to an unfair agreement or one that leaves them reliant on state benefits. The need to provide financial disclosure and for each party to take (or at least have the opportunity to take) independent legal advice should be pre-requisites so each of them enters into the pre-nup with their eyes wide open.

“We welcome the fact that the paper is being published and hope that it leads to a new law giving certainty on the status of pre-nups going forward.”

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