Marital agreements: who’s got it right? Kate Molan & Sarah Caroline Boyle
The Supreme Court’s decision in Radmacher v Granatino [2010] UKSC 42 was welcomed by practitioners in England and Wales for setting down a number of much needed guiding principles about the treatment of marital agreements. Consequently, while an agreement cannot oust the jurisdiction of the court entirely, there is now a rebuttable presumption that a court should give effect to a nuptial agreement which has been entered into freely by both parties with full appreciation of the implications of the agreement unless in the circumstances it would not be fair to hold the parties to their agreement. The court in Radmacher acknowledged the interpretative difficulties facing practitioners in relation to the concept of fairness, making it clear that fairness will vary from case to case. However, it is clear that any agreement which would prejudice the reasonable requirements of the children of the family or fail to address a party’s needs would be regarded as unfair. The
