Analysis: Fair case for well drawn up pre-nuptial agreements

A "PRENUP" is about as romantic as a beige pair of polyester bedsocks, but unlike the bedsocks, it can save you a lot of litigation.

The Supreme Court has upheld a pre-nuptial agreement in the high-profile Radmachar v Granatino divorce case. In a nine-judge decision issued yesterday following hearings in March, the agreement was upheld despite the fact that the husband, Mr Granatino, argued it was to his disadvantage and brought about a result which the English court would not otherwise have reached.

The case represents a significant step forward for the law in England and Wales where pre-nuptial agreements have traditionally been given little respect.

Until now, the English courts have jealously guarded their right to exercise a wide discretion in financial matters in family law cases, even where parties have sought to reach their own agreement.

The Radmachar judgment gives a strong nod towards the need for a statutory framework regulating the effect of pre-nuptial agreements as recommended by the Law Commission in England.

As the Supreme Court points out early in the judgment, English law up to now has differed from the position in Scotland.

In Scotland, a pre-nuptial agreement may be set aside in subsequent divorce proceedings if it was not "fair and reasonable" at the time it was made. The courts must consider whether each party had the opportunity to take independent legal advice and an agreement will not necessarily be unfair or unreasonable because it divides the couple's assets unequally.

The law in Scotland is not new but has generated surprisingly little litigation and the Scottish courts have so far managed to avoid the confused state of English law described by Lady Hale in Radmachar as "a mess".

Pre-nuptial agreements are becoming more common and can remove a lot of the destructive uncertainty in a marriage, especially between two economically unequal parties.

Although the Radmachar decision does not directly affect Scots law, the media attention it has generated is to be welcomed in the hope that more Scots might seek legal advice about how best to organise their assets before a relationship breaks down.

l John Fotheringham and Jacqueline Fordyce are solicitors at Fyfe Ireland, Edinburgh