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Court Consideration of Divorce Claims in Which a Prenuptial Agreement Was Concluded

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8

2000

Judges are bound by the terms of the Matrimonial Causes Act of 1973, and this is how they typically treat married couples who come before them, prenuptial agreement or no.&nbsp. And, despite the supposedly “landmark case” that was handed down in Radmacher v. Granatino, this will likely continue to be the case.

English law regarding prenuptial agreements is based upon both policy considerations and the mandate that Parliament must change the law, the bench cannot.&nbsp. As it stands now, there is no statutory authority regarding prenuptial agreements, either favoring them or precluding them.&nbsp. Among the policy considerations taken into account by family law courts are that, if a spouse is left without any means of support, then a third party must support her, sometimes the state, and that a wife cannot “barter away” her right to spousal support. Another policy consideration is that such agreements “deprive the court of a jurisdiction it otherwise would have.”

Perhaps the first case that dealt with prenuptial agreements directly was F v. F &nbsp.&nbsp.In this case, the wife of a millionaire would have received, under the terms of the prenuptial agreement that she signed, the “equivalent of a pension of a German judge,” which was deemed ridiculous by Thorpe J, stating that prenuptial agreements should “in this jurisdiction they must be of very limited significance.”

Nevertheless, despite this language, prenuptial agreements are taken into account in English family cases.&nbsp. Perhaps they are not followed to the letter, but they are a “material consideration” in making awards.&nbsp. Judges are bound by the statutory constraints of the Matrimonial Causes Act 1973, and the existence of a prenuptial agreement is one consideration that is taken into account among the other factors in this Act.&nbsp.The other considerations taken into account are a) the income of the parties. b) the financial needs of the parties. c) the standard of living previously enjoyed by the parties. d) the age of each party, and the duration of the marriage. e) any physical or mental disability suffered by either party. etc.&nbsp.