The issue that lay at the heart of this case was, the weight that the Court should give to an ante-nuptial agreements when considering the division of the matrimonial assets
RABMACKER (FORMERLY GRANATINO) – RESPONDENT –v- GRANATINO – APPELLANT
DECISION HANDED DOWN ON THE 20TH OF OCTOBER 2010, HAVING BEEN HEARD ON THE 22ND AND 23RD OF MARCH 2010 BY A FULL SITTING OF THE SUPREME COURT
The Court decided that weight will be given to these agreements but caution should be shown by those wishing to enter into same, as these agreements are not legally binding per se, as in Scotland, the United States of America, Australia and many countries in Europe.
Specialist advice should be sought when these agreements are to be entered into, and in particular the Home Office consultation document published in 1998 gives helpful guidelines that should be considered before a Court would consider making an ante-nuptial agreement a Rule of Court.
The Government proposed that any such agreement should be subject to six safeguards. It would not be legally binding:-
• where there is a child of the family, whether or not that child was alive or a child of the family at the time the agreement was made
• where under the general law of contract the agreement is unenforceable, including if the contract attempted to lay an obligation of a third party who had not agreed in advance
• where one or both of the couple did not receive independent legal advice before entering into the agreement
• where the Court considers that the enforcement of the agreement would cause significant injustice (to one of both of the couple or a child or the marriage)
• where one or both of the couple have failed to give full disclosure of assets and property before the agreement was made
• where the agreement is made fewer than 21 days prior to the marriage (this would prevent a nuptial agreement being forced on people shortly before the wedding day, when they may not feel able to resist).
The above are a useful checklist for the Court in helping to decide the fairness and therefore the enforceability of an ante-nuptial agreement.
It is thought that eventually legislation will come in this area. However, until then special advice should be taken before considering entering into an ante-nuptial agreement.
For further advice on this or any other Matrimonial matter contact Mrs. Doreen Kelly.