To answer that question, we must consider the background and in particular, the court’s starting point which has been that there should be no option for the parties to exclude the decisions or orders which the court would otherwise make. ‘As a matter of public policy, the parties cannot by agreement oust the jurisdiction of the court’ (quote from the case of Hyman & Hyman 1929). Furthermore, the law in England and Wales considered it ‘unseemly’ to endorse something which effectively looks to undermine a marriage by contemplating its breakdown from the outset.
Accordingly, the court in England and Wales regarded any ‘Agreements’, made before marriage which attempted to limit or prevent the court from making orders in the event of marriage breakdown, to have little or no weight. This is of course in sharp contrast to our American friends, who consider it most unusual and unwise not to have a Prenup when entering any new marriage.
Are we therefore a little behind the times and old fashioned in our thinking or are we more measured and wise to consider that there is more to these ‘Agreements’ than meets the eye?
When you consider the changing situations in the lives of many couples during the course of their marriages, would it be right to hold someone to the terms of an Agreement which they made perhaps naively as a newly married twenty-something?
What then should happen to a wife, now in her thirties or forties, who finds herself with a disabled child or two, a husband who has found himself someone else and who refuses to deviate from an Agreement which was signed when they were newly-weds but which does not now provide adequately for her? How can the court assist if they are to fully endorse and impose such Agreements?
The court has been cautious and I consider that to be a good thing. The legal system has paused rather than adopting the American course. It has offered protection to the initially unwise and in fact continues to do so.
In 1997 the situation under English statute began to turn. The case of S v S produced a Judgment which acknowledged that attitudes to Prenuptial agreements would change and by 2002 we saw that change in the case of M v. M, when the court allowed the existence of a Prenuptial Agreement to affect the award which the wife received. During this case the Judge said that whilst the court is not bound by the terms of a Prenuptial Agreement, it should look at it and decide what weight should be attached to it. Furthermore, it was said that if the agreement produces unfairness then it would be unlikely to be upheld. By 2003 the case of Kay v. Kay saw the prenuptial agreement completely up-held with the Judge stating that it would be inequitable to disregard it. The leading case is now Radmacher v. Granatino 2010 which broke significant ground with regard to Prenuptial agreements. However, this case did necessitate an appeal by Ms Radmacher to succeed in getting the Agreement upheld and deemed binding upon Mr Granatino.
The advice has to be that it is right to have a Prenuptial Agreement in place where one party wishes to protect specific assets, particularly where those have been or are likely to be inherited from family. This must be just as important as having a Will in place.
Amazon Founder Jeff Bezos (deemed to currently be the wealthiest man in the world) didn’t enter into a prenuptial agreement with his wife McKenzie. Accordingly, McKenzie potentially will gain as much of the wealth acquired by the Amazon business as Jeff himself given those assets will be deemed to be matrimonial. That is, unless there is otherwise good reason for them not to fall into the matrimonial pot. Is that fair enough? Without a Prenuptial Agreement the court cannot really say otherwise.
So with this information at hand, you get to decide if such an agreement is worth the paper, I personally think they could just be worth their weight in gold.