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UK Supreme Court recognizes pre-nuptial agreement in landmark ruling

By Andrea Bottorff

[JURIST] The UK Supreme Court [official website] set new precedent Wednesday by ruling [judgment, PDF] in favor of recognizing a pre-nuptial agreement during divorce proceedings. The decision affirmed an appellate court decision [judgment, PDF; JURIST report] that honored a pre-nuptial agreement between German heiress Katrin Radmacher and her ex-husband, which was intended to shield her assets. The Supreme Court made no distinction between the timing of marriage agreements, stating: "If parties who have made such an agreement, whether ante-nuptial or post-nuptial, then decide to live apart, we can see no reason why they should not be entitled to enforce their agreement." However, the court did emphasize the importance of courts reviewing the facts of each case to ensure that the agreement was fair and made freely by both parties. Critics of the ruling argue that the court went beyond its role of interpreting laws [Telegraph report] by creating a new law. UK divorce courts have traditionally not taken [backgrounder] pre-nuptial agreements into account when dividing marital assets. Instead, the courts have assessed the financial needs of the couple and any dependents in an effort to protect the financially weaker partner. The Supreme Court ruling suggests that recognition of pre-nuptial contracts is in line with the British approach to contracts generally.

The ruling brings UK law in line with other European countries' treatment of pre-nuptial agreements. In March, the European Commission (EC) [official website] proposed reforms [JURIST report] to simplify and clarify international divorce laws. Under the proposal, married couples from different EU countries could choose the country of the divorce, and the various courts would use a common formula to decide which country's law applies when a couple disagrees. The measure, supported by 10 countries [BBC report], was first debated [JURIST report] in January amid concerns [press release] about potential unfairness in cross-border divorces, since the law across the member countries varied significantly.

Full post as published by JURIST - The Paper Chase on October 20, 2010 (boomark / email).