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Rightly or wrongly there is now a presumption that the court will give effect to a nuptial agreement - Essay Example

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“Rightly or wrongly there is now a presumption that the court will give effect to a nuptial agreement (before or after marriage) freely entered and understood, provided it is not unfair in the prevailing circumstances. It is no longer just one of the circumstances of the case.” Introduction In recent years, UK and other countries globally, have witnessed rising instances of divorces and annulment of civil partnerships,1 making them more socially acceptable, than they were, even some decades back…
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Rightly or wrongly there is now a presumption that the court will give effect to a nuptial agreement
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Download file to see previous pages ment of maintenance, both for the adults and for any children.”4 With divorces becoming more common, pre-nup agreements are now considered as important, where the couple decides (prior marriage) on how they wish to divide their assets, once they annul their partnership or divorce. Even though pre-nups are legally enforceable in many countries worldwide, in UK they are not legally binding on the courts. This article examines the present legal scenario in UK related to pre-nuptial agreements or “pre-nups” (more commonly referred to as “ante-nuptial agreements” in UK legal terms), in the context of the Radmacher v Granatino case. It explores to find out whether it is really true that under the present legal scenario, “the court will give effect to a nuptial agreement (before or after marriage) freely entered and understood, provided it is not unfair in the prevailing circumstances. It is no longer just one of the circumstances of the case.”5 The basis of this consideration arises from the fact that previously pre and post-nups were treated under UK legal system with little regard and a great deal of suspicion. In recent times, many high-profile divorce/annulment of partnership cases have seen outcomes where ‘ancillary relief’ (application for financial support) has been arbitrated/affected by pre-nup or post-nup agreements made in England.6 In the appeal Radmacher v Granatino,7 the judgement passed in March 2010 by UK Supreme Court was significant within UK legal systems, as here it was for the first time that a pre-nup agreement signed in Germany (prior to a marriage in England) was accepted and held binding by the UK Supreme Court. Discussion Background to marriage dissolution legal scenario in UK: Marriage under UK family law is generally viewed as a contract,8 and to obtain validity for this contract the concerned parties would have to be unrelated within the specified prohibited ambit, must be more than 16 years of age, and the contract must be between a male and female who are not already married.9  If any one of these ‘points of capacity’ was absent then the ‘contract’ was nullified, under various sections of the Matrimonial Causes Act 1973 and the Marriage act 1949.10 Besides these ‘points of capacity,’ other formalities necessary to make a marriage valid, included, that the occasion be venerated, accredited, and registered. Furthermore, the partners must possess adequate mental capacity to enter into the marriage contract, both, consciously and willingly. 11 Under UK legal system, there are two processes to dissolve a marriage contract.  If in a marriage there is a defect (within the realms of the aforementioned points), it is marked as voidable. Here the partners can apply for a decree of nullity under the Matrimonial Causes ...Download file to see next pages Read More
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