Supreme Court rules in favour of Radmacher - what does this mean for the pre-nup?
Family
Comment | 20 October 2010
A landmark legal ruling made by the Supreme Court today has given significant strength to the rights of couples ahead of marriage to divide their assets in the event that the marriage breaks down.
The Supreme Court decided that pre-nuptial agreements should be given ‘decisive weight’ in divorce proceedings, rather than merely being taken into account alongside a number of other factors such as the standard of life enjoyed during the marriage and the earning capacity of the parties.
Commenting on the ruling, Keith Schilling, founder and senior partner at Schillings, the leading privacy and family law firm, said:
“Today’s decision offers couples more than just an opportunity to establish financial arrangements in the event of relationship breakdown. At a time when big money divorces seem to be of huge interest to the media, pre-nuptial agreements can also be used as a privacy tool to prevent either party from spilling the beans about the marriage.”
Pre-nups can provide for a fair division of property assets before a marriage takes place, protect existing or inherited wealth and can also avoid contested divorce proceedings. Financial proceedings following divorce now take place in the presence of the press and a marital contract can avoid that.
For many, this decision will be viewed favourably and seen as a positive step forward - an acknowledgment that those entering into marriage are adults and capable of deciding how their marriage should end (in the event that it does).
For some, however, pre-nups raise the spectre of fiancés blinded by love signing away their rights to a fair financial settlement in the event of a future divorce.
Read further comments from our Family team:
Rachel Atkins
“On the plus side, married couples can now regulate the division of their assets on divorce even before they are married and their finances need not be subjected to media scrutiny during a divorce hearing. However, there is potential for the financially weaker party, often the wife, getting a raw deal as they may have made a real contribution to the family finances but under the marriage contract agreed not to receive any part of it. Was it right therefore, that the panel of the Supreme Court be made up of eight men and one woman? It is also profoundly unromantic."
David Greer
"Today’s eagerly anticipated judgment in favour of Katrin Radmacher is a significant move towards recognising individual autonomy and the right to enter into marriage contracts. In a revolutionary judgment the Supreme Court has swept away the previous obstacles to the enforceability of pre-nups whilst retaining safeguards to prevent injustice. In years to come this is likely to lead to an explosion of litigation as spouses try to avoid pre-nups being enforced. The enhanced status of pre-nups will enable couples to protect their privacy by avoiding acrimonious litigation and the media attention which often comes with it. "
Davina Hay
“We expect it to lead to pre-nups being much more widely used as they are on the continent and in much of the United States. The greater weight now attached to pre-nups means that married couples can now move to regulate the division of their finances on divorce even before they are married. Ironically, wives are more likely to be disadvantaged by marriage contracts yet in this case it was a wife who changed the law.”
