Prenups UK

24 March 2017

Lord Wilson of Culworth delivers speech about changes in the financial consequences of divorce, and speaks in favour of prenuptial agreements becoming legally enforceable

On 20 March 2017, Lord Wilson gave an address to the University of Bristol Law Club about changes over the centuries in the financial consequences of divorce, including the development of the law regarding prenuptial agreements.

Lord Wilson has enjoyed an extremely distinguished legal career spanning half a century, as a family law barrister for 25 years and then as a Judge in the Family Division of the High Court, then the Court of Appeal and since May 2011, as a Justice of the Supreme Court.

Lord Wilson is well known for his views about the need for more importance to be attached to a couple's right to autonomy. His view is that mature adults should be free to make their own enforceable agreements about their marriage and finances, just as they can in relation to other aspects of their lives, and that to deny couples the right to do this is patronising, especially to women. He drafted the joint response, summarising the views of the President and other Family Division Judges, to the then Labour Government's Green Paper "Supporting Families", in 1998. That Green Paper proposed widespread reform to the family justice system, including making prenuptial agreements legally binding, subject to safeguards. Lord Wilson led the (then) minority group of Family Division Judges who at that time favoured the introduction of a system whereby prenuptial agreements would be presumed to be legally binding ("presumptively dispositive", as he put it), so long as they satisfied basic requirements and fairness.

He was a member of the Court of Appeal which upheld the wife's appeal in Radmacher v Granatino, in 2009, which was subsequently upheld on the husband's appeal to the Supreme Court, the following year. This decision represented a significant development of the law and remains the leading case on prenuptial agreements.

As Lord Wilson reminded his audience in his address this month: "Until that case was decided, comments by English judges had mostly been dismissive of the legal significance here of a pre-nuptial contract. But in 2010 the Supreme Court ruled that Mr Granatino should be held to the pre-nuptial contract and that the only provision which Ms Radmacher was obliged to make for him should be for what he needed in order to care appropriately for their two children during his periods of contact with them." He also added, unsurprisingly: "I very much approved of this decision." He also told his audience: "My own view is that we have now reached the stage in which, if acting with appropriate care and understanding, parties should be allowed to elect the sort of marriage which they want."

Maeve O'Higgins Family Law Partner, Burlingtons Legal | Email: maeve.ohiggins@burlingtonslegal.com, Tel: +44 (0) 207 529 5420

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