Pre-Nuptial Agreements 'All That I Have I Share With You - Subject to Contract'

A Pre-Nuptial Agreement was the subject of the recent English Supreme Court decision in the case of Radmacher v Granatino1, generating great media interest. What does it mean for couples contemplating marriage in Jersey?

The Facts

The case involved a French wife, a German husband, a Swiss marriage and an English divorce. The wife was said to be worth £100 million. The husband had signed a prenuptial agreement four months before the marriage in 1998 giving up any claim to the wife's fortune in the event that the couple separated. The pre-nuptial agreement had been signed before a German notary.

The husband had not seen a translation of the document, had not taken independent legal advice and there had been no disclosure of the extent of the wife's wealth.

At the time of marriage the husband was earning substantially himself as an investment banker. By the time of divorce, he was reading for a doctorate at Oxford University with limited income.

There was no dispute that if the divorce had been brought in France or Germany, the pre-nuptial would have been binding. But the divorce was brought in England.

The Court of Appeal Decision

The Court of Appeal2 decided that the husband was a man of the world - he had understood he would not be entitled to anything on divorce when he signed the agreement, notwithstanding the lack of translation, legal advice or disclosure. The Court of Appeal therefore gave 'decisive weight' to the pre-nuptial agreement when calculating what financial settlement the husband should receive.

However, that was not the end of the matter. The pre-nuptial agreement did not affect the obligations of the wife to provide financially for the couple's children. There were two young children born during the marriage and the husband and wife were sharing their care. The wife was ordered to pay £2.5 million for a house in London for the benefit of the husband, but only in his capacity as homemaker and child-carer. The house would therefore be held on trust and revert to the wife on the youngest child's 22nd birthday. Further funds for a house in Monaco (where the wife and children lived) were to be provided by the wife on the same terms.

The wife was also ordered to pay £70,000 per year to the husband by way of child maintenance until the youngest child's 22nd birthday, as well as further maintenance to the husband calculated by reference to the youngest child's 22nd birthday. The husband received £700,000 to clear his legal fees and...