Matrimonial Causes Act 1973 Case Study
Therefore, the enforcement of binding pre-nuptial agreements on courts will be discussed as one of the ways of removing discretion.
The principle of autonomy and prenuptial agreements were recognised in the case of Radmacher v Granatino. Autonomy is found through prenuptial agreements by where a couple form a binding contract concerning asset distribution if the marriage failed. Previously, courts would not follow this as it was “considered irrelevant”, however now the significant change has led to prenuptial agreements being one of the “decisive factors for when financial provision orders are being made.” The emergence of mediation and private orders amongst couples was considered, however prenups were not encouraged by the courts. In F v F, Thorpe J was influenced by “public policy and suggested that prenups had little significance, the rights and …show more content…
This is seen in the case of M v M, where a prenuptial agreement between the parties was existing; however this reduced the wife’s final award. The courts applied the principle used in K v K where the courts “set out pertinent factors which were necessary to determine whether the agreement was binding or influential”. Having considered the questions, the courts held the wife’s entitlement to a lump sum of £125,000. The agreement had been settled for a lump sum of “£100,000 within 5 years of marriage”. The judges had to take look at the agreement under s25 (2)(g) MCA 1973 as it would be inequitable to disregard the agreed provisions. However, held that the dispute over the primary agreement did not prohibit “an application for periodical payments” as it would not be fair on the basis of her contribution being the primary carer of the child; thus an award satisfying the need were settled upon. Therefore, the argument stands, with a change of circumstance a couple especially if there are children cannot be bound to stand by the agreement as it is unlikely the parties would have thought of the future. If one party decides to give up work to be the primary child carer, this would have a big impact on their earing capacity. As a result, even with a prenuptial agreement in place, the principle of fairness would be ignored; ultimately