Introduction to marital agreements for Private Client practitioners
Produced in partnership with Alison Bull and Nicola Rowlings of Mills & Reeve LLP
Introduction to marital agreements for Private Client practitioners

The following Private Client guidance note Produced in partnership with Alison Bull and Nicola Rowlings of Mills & Reeve LLP provides comprehensive and up to date legal information covering:

  • Introduction to marital agreements for Private Client practitioners
  • What is a marital agreement?
  • The background prior to Radmacher v Granatino
  • Radmacher v Granatino—the impact of this leading decision
  • The Supreme Court’s three step approach
  • The factors relevant to the weight to be attached to a pre-MA
  • How to identify and quantify 'needs', which must be met for a PMA to be upheld

This Practice Note provides an introduction to marital agreements as a wealth protection tool and the case of Radmacher v Granatino for Private Client practitioners. For further guidance on marital agreements, see the Lexis®PSL Family module Marital/civil partnership agreements subtopic.

What is a marital agreement?

Traditionally the term 'ante-nuptial agreement' referred to an agreement which aimed to order the financial affairs of spouses on marriage but did not address the possibility of divorce. These are commonly used in some jurisdictions in effect to select the property regime applying to the couple (aka marriage contracts). Pre-nuptial (or pre-marital) agreements are ante-nuptial agreements which seek to prescribe what should happen in the event of relationship breakdown. The Supreme Court in Radmacher however referred to 'ante-nuptial agreements' as comprising both ante and pre-nuptial agreements.

The Supreme Court also grouped together separation agreements (made on separation), mid-nuptial and post-nuptial agreements (entered into after marriage where it is envisaged that the marriage will continue) as 'post-nuptial agreements' or in modern parlance post-marital agreements.

A pre-marital agreement and a post-marital agreement (both defined here as PMAs and separately as pre-MAs and post-MAs) may involve third parties; the contractual status of the same remains unclear following Radmacher.

The law relating to PMAs applies equally to same sex marriages and civil partnerships.

The background prior to Radmacher v Granatino

Prior