United Kingdom Supreme Court

Right-to-die challenge reaches Supreme Court

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Prenup agreement enforced under UK law


“The normal reason for asking is that at least one of the parties to the intended marriage wishes to preserve previously acquired assets from the jurisdiction of the divorce courts. Unfortunately, the answer in almost all cases is that the jurisdiction of the divorce courts cannot be ousted in this way and that a pre-nuptial agreement is hardly worth the paper it is written on.

In order to understand why this is so one has to realise that the tradition of the English divorce courts is to look at all the assets of the marriage at the time of the divorce and to distribute them – “his”, “hers” and “theirs” – in whatever way they see fit and accordance with the perceived needs of the parties and of any children. This is done in accordance with certain principles laid down by statute and case law but nevertheless this is the basic outlook of English divorce law when it comes to regulating financial matters between the parties. Indeed, it is an attitude which is shared by Parliament and this paternalistic approach is very different from the more “free market” approach which prevails in the US and which allows the parties to a marriage more freedom to regulate their own financial affairs in the event of divorce.

All the same, there are some good reasons for the English approach and it is not entirely irrational. For a start, it is not obvious how far a prenuptial agreement ought to be allowed to prevail before it is superseded by later events. For instance, an agreement which might seem very sensible in, say, the first year of a marriage might become increasingly irrelevant after the birth of children, a 30 year marriage, illness, bankruptcy or redundancy to name but a few of the factors which could affect any marriage at any time.”
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