The Supreme Court Judges in England have been pondering over the decision in the Granatino –v- Radmacher case, following the Court hearing in March 2010.

The Radmacher case addresses the impact of a German premarital agreement in the context of an English divorce. More recently, a French Court has given effect to the terms of an English premarital agreement in a French divorce. This case illustrates the differences and similarities hidden behind the term ‘premarital agreement’, and the need for European harmonization of the law.

In France such agreements are legally valid and binding. They divide assets and the ‘enrichment’ of those assets during the marriage however they do not provide for the element of ‘fairness’ that English premarital agreements include.

The position of prenuptial agreements in Ireland remains unclear. A Government Working Group, in 2007, recommended that such financial contracts be given a legal footing to assist Judges in dividing a couple’s assets at divorce. Senior Counsel Inge Clissmann, a family law expert and Chair of the Working Group said that while there are still not a “huge demand” for “prenups” they have grown in popularity amongst those on their second or subsequent marriage. “Older people who are marrying again and have grown up children want to make provision for these children through a prenuptial agreement. We believe that now, since the introduction of divorce, they are valid…. Once people take the view that they are valid, we may see a lot more of them,”

The Working Group recommended legal recognition for such agreements, it is also warned that Judges must be allowed a measure of flexibility and be able to take account of changes in a couple’s financial position during the marriage. Ms. Clissmann pointed out that even if they were given legal recognition, they may still be deemed unenforceable if a Judge feels they do not represent a fair settlement for the family. She added that certain safeguards must be introduced, including that any prenuptial agreement is written, signed, witnessed and drawn up with independent legal advice. The Working Group recommended that any legislation giving prenuptial agreements a legal footing must also accord with the Constitution.