Family Law Assignment

This essay will be talking on the introduction of pre-nuptial agreement into the

law and whether it is contrary to the public policy by allowing the courts to give some

weight to that agreement which the parties has been made. In order to answer the

question, one should define the pre-nuptial agreement, then sees the position of the

court in deciding cases which related to the agreement on how the court decide and

later one should address the advantage and disadvantages of the pre-nuptial

agreement on when deciding the cases.

Pre-nuptial agreement is also alternatively known as a contract which enter by both

parties before their marriage or civil partnership. The parties who enter into this

agreement seeks to regulate their potential financial affair during their marriage or to

ascertain the division of the property which owned by the parties in the event of

divorce or separation. The traditional position of England and Wales law is that the

pre-nuptial agreement carries a little weight in the consideration by the court of any

parties application set out under Matrimonial Cause Act 1973(MCA1973). This Act

gives a wide discretion for the court to make decision which allow the courts to make

financial orders on the event of separation which results in fairness. The s.25 MCA

1973 allows the court to exercise their discretion together with the case law. Under

s.25(1) MCA 1973 stated that “the courts must always regard to all circumstances of

the case”, and this is where the court may consider the gratified of the pre-nuptial

agreement between the parties.

Nevertheless, it has been rejected by the Supreme Court of this view of pre-nuptial

agreement carries little weight. In the case of M v M, it was considered that it was

contrary against the public policy which the agreement requires the parties to enter

the marriage or civil partnership while contemplating the its breakdown. In the case
of Cocksedge v Cocksedge, it was held that the pre-nuptial agreement involved a

duty to live together and that the same time has an agreement which makes

provision for the possibility of separation by the spouse and it act as an

encouragement of nay breakdown in future after the marriage or civil partnership.

Thus, the agreement was void and court would not consider the agreement.

Furthermore, in Hyman v Hyman it was determined by the court that the pre-nuptial

agreement will not oust the statutory powers of the court which to award the financial

orders during the event of the separation.

However, despite the agreement contrary to public policy, it’s always part of

circumstances that ca be considered in the ancillary relief cases and there was a

twist by the case of Radmacher v Granatino on the perception of the pre-nuptial

agreement by the courts. In this case, there was husband and wife, the husband was

from France and the Wife is from Germany. Both the husband and wife singed a pre-

nuptial contract in Germany. The contract stated that the both parties will not have a

financial claim if they are going to separate. At first, the judge Baron J negligently

has placed weight on the agreement which set out by the spouse and granted the

husband a 5 million who was less wealthy compared to the wife. At the Court of

Appeal, held that the Baron J had been erred on his judgment by placing the weight

on the agreement and allowing 5 million to the husband. It was clear that the law was

moving on and placing a greater weight on the agreement than previously. Later on,

the husband appealed to the Supreme Court. The decision which made by the

Supreme Court in that case formed three distinct part. Firstly, the majority 8 out of 9

upheld the decision which was made by the Court of Appeal, secondly Lady Hale

made the dissenting judgement and thirdly Lord Mance shared the reservation

made by Lade Hale but still supported the majority.

 Hence, the majority in this case held that judges should which depend on the

circumstances that, the agreement should give precise weight on it which is part of

the court’s discretion under MCA 1973. The court clearly stated that the judges

should not blindly follow the agreement or contract which set out by the divorce

parties but were to assess the substantive and procedural of the agreement. This is

by taking into account those that met the test and discarding orders. By this case,

there have been adequacy of the standards of procedural fairness laid down by the

case of Radmacher. There are some reason for the court considered of giving some

weight on the agreement and the reason which the court found it in the case of

Radmacher is that the agreement should be procedurally fair and when it is

voluntarily and knowingly made with the understanding of the legal consequences of,

after each party was made aware of the material facts which is relevant to the

agreement. Both before making this agreement should have their own legal advice

and disclosure of each other’s assets. The courts also held that for the agreement to

be considered, the parties should not enter the agreement under any duress or

undue influence to consent the contract or agreement.

Thus, it has been clearly seen that the courts have been slightly considering the

pre-nuptial agreement on some cases by applying the requirement which it has been

set out in Radmacher. So, with the clear definition of pre-nuptial agreement and the

courts steps which has been taken to consider the pre-nuptial agreement, now this

part of essay would focuses on the advantages and disadvantages of the pre-nuptial

agreement and lastly will compare to consider whether it is really contrary to the

public policy even with the requirement which court made after the case of

Radmacher v Granatino.
 There are certain advantages which can be seen when the parties made the pre-

nuptial agreement which helps them during the marriage or civil partnership also

helps in the event of divorce or separation. Firstly, the pre-nuptial agreement could

give certainty during the marriage or even in the process of divorce. This argument

could arguably say that it’s a strong reason for the pre-nuptial agreement. There are

certain couples fear the outcomes of ancillary relief where it is uncertain. The

argument here is that the parties should always the certainty in advance that their

spouse will not bring up or re-open any financial agreement beyond the agreement

which has been made before the marriage and this to ensure neither party involved

in any uncertainty or stress or cost of any litigation where if the parties resorting to

the court. This argument could help the parties because some are just don’t know

how needs, or compensation and sharing each other, which can see in the case of

Miller v Miller where the husband and the wife ended their relationship after 2 years

and the husband formed a new relationship. The husband capital worth 17 million

and the wife’s assets was around 100,000, 50% of which was locked into a pension.

The court of Appeal held that it was the husband fault for the marriage to break down

and the wife awarded 5 million but Supreme Court rejected the arguments and held

that since it was a short marriage, the husband’s wealth increased during the short

period of marriage and the amount 5 million cold be said to be a fair share for the

wife. Thus, it is clear that just because of the uncertainty of the ancillary relief it could

be unfair for the wife. Hence, the agreement could give the certain on the matters

like this.

Secondly, having a prenuptial agreement can see as a valuable rule to protect the

parties special properties. Many people seek on marital agreement just ensure that

the certain property is not vulnerable to sharing on the event of separation or

dissolution. This is where one of the parties own a family business, perhaps inherited

or jointly owned with other family members, which they do not want sell or divide just

to meet the claim of the estranged spouse during the event of divorce. By doing this

agreement which meant to protect their special property, they also protect the labour

and investment of their own families. There can be also for a desire on contractual

certainty where the parents make amenities for their children and for their partners.

By in a way of the parties agreeing that the property should not be divided or shred

in the event of separation. Moreover, this agreement also can protect people from

the gold-digging behavior. This can be seen in the case of Clark v Clark, where the

Court of Appeal held that the wife’s misconduct was so inferior which would be hard

to conceive graver misconduct. The Court of Appeal criticized the lower court

judgment, where they accepted the conduct was bad but decided it will not affect the

level of award to the wife. In H v H Coleridge J held that in assessing the significant

conduct the court cannot be disciplinary but rather it should always lead the court to

place in a better emphasis on the needs for the victim and less for the blameworthy

party. Thus, it is also shown this argument that the agreement may gives a more

justice outcome for parties to protect their property and prevent from any misconduct

or injustice outcome.

Thirdly, the pre-nuptial agreement can support the institution of the marriage or

civil partnership. In some scenario there some parties a re scared to be committed

into marriage just because of the ancillary relief. Due to this they are not willing to

marry and they are also parties where not willing to re marry just because of the fear

they have on the ancillary relief where they don’t want to face the same problem.

There is some news that it concerns some parties which they come from countries

where the marital agreement regimes and they can’t find any expectation in the
English and Wales country. This makes people to cohabitate rather than getting into

marriage. Thus, the pre-nuptial may encourage parties to marry or be in civil

partnership. It is also encouraging for an open discussion before the marriage. So,

this can be said that it may energies the couples to spent in discussing the financial

aspects of each shared lives. People who can argue or overlooked on pre-nuptial

because of the case of White v White where it changed the implication of marriage,

dramatically, for a minority and be a serious disincentive to marriage for some. The

decision before that case, the property was not to be shared on the event of the

separation unless the parties meet the reasonable requirement, but after the White

v White, marriage was literally encouraging for the rich and not for the parties whose

wealth not rich enough.

However, there are always two side of coins which means if there are advantages

of this agreement and there also will have the disadvantages of the agreement.

Firstly, the vulnerability of the economic weaker party. This means that the party who

is economically weaker just want to agree to clauses limiting his or her rights just to

get the pre-nuptial agreement concluded so he or she could focus on important thing

such as preparation for the wedding. This can explain in Edgar v Edgar, where the

Court of Appeal decided that to go with the agreement where the wife does not get

not beyond the agreement. The Husband was rich and was in a position to make a

large amount but still the wife claim was rejected. Even though here the wife was

eager to get out from the matrimonial home and no evidence the husband induce the

wife to act her disadvantage and also where the wife failed to show why the court

should go behind the agreement but this was not fairly done because she could be

vulnerable at the time of agreement. Thus, she would not think the consequences so

this make one party at lose and another at win.

 Secondly, autonomy was always people favorite to be seen an advantage but this

could see as a flaw because there is two reason for it. The first reason the autonomy

can seen as imagination where the relevant parties may in love so they could agree

to any agreement which set out by their spouse. This is because they believe that

this relationship would not end but in reality, some relationship is not a fairy tale. The

second reason would be this autonomy can also give pressures to one party to enter

into the contract. The pressure could be unintentional because love can make a

people blind. Mostly, one party asked the other party to sign when the marriage or

wedding is arranged and this is where the other party has no choice but just to follow

as the spouse ask them to do it. There some point where the law has recognized

that in a close relationship like marriage or civil partnership there are some kind

pressure, thus, this could say that the agreement can be made upon pressure or

love which could not be valid and the court should not consider about it in the event

of separation.

Thirdly, the pre-nuptial agreement could not be adequate. In Miller v Miller and

McFarlane v McFarlane, which Lady Hale stated that “what seems to be fair and

sensible at the outset of a relationship may seem much less fair and sensible when it

ends”. There are circumstances where the agreement which made prior to the

marriage could make as imprudent financial agreement and “the emotional moment

when legal advice is easily brushed aside”(have to cite it pg 43). It has been stated

by the court that “should not be blind to human frailty and susceptibility when love

and separation are involved. The need for careful safeguards to protect the weaker

party and ensure fairness remains”(cite it and its in pg 43). Hence, this disadvantage

shows that the weaker parties gain nothing from the agreement which been made
before the marriage or civil partnership. This leads to ambiguity because when

deciding the agreement, it should always benefit the both not just one.

Conclusion, from the above points which I have been made, we can draw a answer

to the question whether the pre-nuptial agreement contrary to public benefit or not. It

is clear that it is not an contrary to public policy because the court decide to consider

on the agreement after putting some requirement an some measurement on the

decision they mad. This requirement been made as mentioned earlier in the case of

Radmacher v Granatino. In addition, advantages outweigh the disadvantages

because the flaws which made by the other parties which stated above only happen

when a party is vulnerable which does not fit in this generation. This is because this

generation people are all well aware of any circumstances which arise in the future,

so this shows that pre-nuptial agreement may change or reduce the work of the court

and the court manage their time in other most important cases.