Supreme Court Justice Lord Wilson has recently expressed his views on spousal maintenance and his support for binding pre-nuptial agreements. On 20 March 2017, he gave an insightful speech to the University of Bristol Law Club on the development of family law and commented that:
Lord Wilson was a member of the Court of Appeal that had ruled in Radmacher v Granatino (2009) that Mr Granatino should be held to the pre-nuptial contract agreed with Ms Radmacher. He recalled that:
Nuptial agreements are not binding in the UK but will carry weight with the court on a future divorce depending on the circumstances. The Supreme Court upheld the decision of the Court of Appeal taking the view that the contract would not be upheld if it would not be “fair” to hold a party to it. However, how do we determine what would be fair and how can we attempt to foresee what the future holds?
The starting point is to ensure that the nuptial agreement provides for changing circumstances, such as any future children that may be born or adopted and potential changes in income for the parties’. There should also be an opportunity for the agreement to be reviewed by the parties after a certain time, often after 3 – 5 years. A pre-nuptial agreement can also be converted to a post-nuptial agreement after marriage in order to carry more weight with the court in the future.
Lord Wilson referred to continental systems that encourage parties to provide for the financial consequences on divorce before marriage and considered is this could assist with maintenance. One area of contention on divorce is how long into the future one party should make spousal maintenance payments to the other. It is possible for spousal maintenance payments to continue from the husband to the wife (and in appropriate circumstances vice versa) “for many years following the divorce, sometimes (unless she remarries) even until one of them dies”. He also commented:
With changing views on the appropriate term for spousal maintenance, it may be difficult to judge what would be fair under a nuptial agreement in the circumstances.
A full copy of Lord Wilson’s speech can be found at: https://www.supremecourt.uk/docs/speech-170320.pdf
If you would like to discuss pre-nuptial agreements or any issues arising from the above article, please contact our family team on 01737 854 500.