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Tuesday, July 07, 2009
British Court of Appeal ruling on prenuptial agreements should lead Parliament to change the law
July 7, 2009 9:07 AM ET
Elizabeth Hicks [Partner and Head of Family Law London, Irwin Mitchell LLP, a member of Divorce Aid]: "The decision of the Court of Appeal shows that the Courts are now more likely to agree that a pre-marital contract should be upheld even when one party has not obtained legal advice and where there has not been full and frank disclosure of their assets. This is a real turnaround in the Court's positioning. Until now, the guidance and advice given by all lawyers was that to make a pre-marital agreement as water tight as possible, the couple should tell the other about the extent of their wealth and they should each get independent legal advice.
In the case of Granatino, the wife did not disclose her assets and the husband did not seek advice. There is considerable commentary within the Judgement about the fact that there should be "due respect for adult autonomy." Where there are two consenting adults who wish to regulate their financial affairs, why shouldn't they be allowed to agree on what should happen in the event of a divorce?
This decision makes it plain that there needs to be a change in the law which only Parliament can do. The Courts have given a clear message that prenuptial agreements should be binding unless there is duress or fraud.
What is particularly interesting about this case is that it seems that there is no longer a need to disclose details of assets although it is anticipated that this will still be the advice that is given to couples about to marry. There needs to be a change in the law and the courts have gone as far as they can to ensure that two adults can now regulate their financial affairs."
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