Marital agreements and asset protection
Produced in partnership with Alison Bull and Nicola Rowlings of Mills & Reeve LLP
Marital agreements and asset protection

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:

  • Marital agreements and asset protection
  • Unresolved legal issues after Radmacher
  • The future—what next?
  • Marital agreements and drafting Wills

For an introduction to marital agreements and the reported cases since Radmacher v Granatino, see Practice Notes: Introduction to marital agreements for Private Client practitioners and Marital agreements following Radmacher v Granatino for Private Client practitioners.

Unresolved legal issues after Radmacher

An impermissible gloss on the court’s statutory duties?

It is still too early to be sure whether the test set out by Lord Phillips was 'an impermissible gloss upon the court’s statutory duties' as dissenting judge Baroness Hale thought. To all intents and purposes there is now what amounts to a presumption (although not called this) that 'the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement'. There remain no express safeguards in place other than usual contractual principles.

In Radmacher, Baroness Hale proposed a different test, moving back from the presumptive nature of the majority’s test 'did each party freely enter into an agreement, and intending it to have legal effect and with a full appreciation of its implications? If so, in the circumstances as they now are, would it be fair to hold them to their agreement?' Arguably, the outcome of the case law since Radmacher seems