Z v Z (No. 2) [2011] EWHC 2878

Pre-marital agreements are not binding under English law and, despite judicial and public pressure to act, successive governments have failed to address the matter. Notwithstanding this absence of legislation, the Courts have been trying to keep in step with the prevailing social climate and have adapted their application of the existing relevant legislation to take pre-marital agreements into account as "one of the circumstances of the case". This approach culminated, last year, in what was perhaps the high point of judicial recognition for such agreements. In Radmacher v Granatino the Supreme Court held 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."

Last week the court made a decision in the first known contested case following Radmacher. The case (Z v Z (No. 2) [2011] EWHC 2878) concerned a French couple who entered into a separation de biens marital property regime prior to the marriage. They subsequently moved to London and, following a jurisdiction battle, the divorce proceeded in England. There were 3 children of the marriage. The assets totalled c.£15m, of which only a small proportion was in the wife's name. It was common ground that if English law applied and the property regime were not given effect, the wife would have received 50% of the total assets.

The wife raised two arguments against being held to the marital property regime. The first argument was that the separation de biens should be ignored either (i) on the grounds that she was induced to enter into the agreement on misleading grounds or (ii) that the separation de biens arrangement had subsequently been varied by agreement...