Implications of maintenance, separation and post-nuptial agreements within proceedings for financial provision

The following Family practice note provides comprehensive and up to date legal information covering:

  • Implications of maintenance, separation and post-nuptial agreements within proceedings for financial provision
  • Types of agreements
  • Maintenance and separation agreements
  • Post-nuptial agreements
  • Law Commission recommendations
  • Prior agreements—general principles
  • Agreements reached during litigation—special considerations
  • Where one party reneges on an agreement

Implications of maintenance, separation and post-nuptial agreements within proceedings for financial provision

The parties to a marriage or civil partnership cannot contract out of the court’s jurisdiction to make orders for financial provision on divorce or dissolution, however, the existence of a post-nuptial, maintenance or separation agreement may have a persuasive or even decisive influence on the outcome of either party’s application for a financial remedy, depending on the precise circumstances surrounding the agreement. The Supreme Court in Radmacher (formerly Granatino) v Granatino did not accept that there is necessarily a material difference between a pre-nuptial agreement and a separation agreement, and found that the court is entitled to overrule the agreement in either case. See also Practice Note: Implications of pre-nuptial agreements within proceedings for financial provision.

The agreement may be taken into consideration as either part of all the circumstances of the case, or as conduct it would be inequitable to disregard. Post-Radmacher the court must have regard to whether the terms of the agreement are 'fair', see: The impact of Radmacher. An example of the application of the general principles, including Radmacher, is MB v EB (No 2), where the wife was a businesswoman from a wealthy family and the husband was an artist. The husband had a long history of mental health issues, aggravated by an accident which caused him to suffer

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