Radmacher and post nuptial agreements

Valerie Sterling has recently drafted a post-nuptial agreement taking into consideration the Supreme Court decision in Radmacher (2010) UKSC 42.

The need for a post-nuptial agreement arose because of the particular facts of the case and because the husband had a number of pensions. In the unfortunate event of such a husband’s death, the legal widow will be entitled to a pension under the terms of the pension scheme. A widow’s pension in such circumstances would be payable as long as the parties were not divorced at the time of the husband’s death.

The parties wanted to take advantage of the approach set out in paragraph 75 of Radmacher whereby the Court will give effect to a nuptial agreement ‘that is freely entered into by each party with a full appreciation of its implication unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’.

It is important, before signing any nuptial agreement, for each party to receive separate and independent legal advice from their respective solicitors.

Given the prevailing circumstances, the parties wished to remain married but to have a deed of post nuptial settlement setting out the binding financial settlement agreed between them which is intended to be enforceable between them.

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