'Marriage still counts for something in the law of this country and long may it continue to do so.'
Consider this comment by Baroness Hale in the Radmacher case. Should pre-nuptial agreements be taken into account in divorce cases?
Consider how the English courts treat pre-nuptial agreements.
- run through the factors the court takes into account in reaching a financial settlement - s 25, principles from the case law, and the emphasis on a clean break.
- run through the facts and principles discussed in Radmacher and the outcome of that case.
- mention that Baroness Hale dissented in Radmacher.
- consider the post-Radmacher case law
Consider the Law Commission report on Matrimonial Property, Needs and Agreements and the proposals made for Qualifying Nuptial Agreements.
Do you think that the case law and / or the Law Commission report offer adequate safeguards for the weaker party entering into a pre-nuptial agreement? Consider Barlow and Smithson, ‘Is Modern Marriage a Bargain? Exploring Perceptions of Pre-Nuptial Agreements in England and Wales’ (2012) CFLQ 304 which explores public perceptions.
Do pre-nuptial agreements undermine marriage?
- Consider the arguments for and against pre-nuptial agreements being binding and focus particularly on whether they undermine marriage.
- In doing this you will need to outline your view on marriage. For example, is marriage a partnership, a contract or something else? (See Herring, Family Law, p.45 for further discussion).
Finish with your conclusions on whether pre-nuptial agreements undermine marriage.