ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
divorce. The court will need to assess firstly whether interim maintenance is appropriate and secondly what level of maintenance should be provided. This is done by an analysis of the par - ties’ respective income and income needs. The court’s power to award spousal mainte - nance is set out in Section 23(1)(a) of the MCA 1973 and, for secured periodical payments, in Section 23(1)(b). The court will determine quan - tum by looking at the parties’ respective income needs and will make an award that takes these into account as well as the resources of the par - ties. The court will expect both parties to max - imise their earning potential as much as they reasonably can. 2.5 Prenuptial and Postnuptial Agreements Nuptial agreements are not legally binding under English law; however, following the seminal case of Radmacher v Granatino (2010) UKSC 42 (“Radmacher”), they carry significant influence with the courts. Provided that certain procedur - al safeguards have been put in place, parties should assume that the court will hold them to the terms of the nuptial agreement. The court, however, retains its discretion to make a financial award that is contrary to the terms of a nuptial agreement if the latter would not produce a fair outcome. The seminal case of Radmacher marked a shift in the court’s approach to the implementation of nuptial agreements. In this case, the prenuptial agreement was to protect the wife’s substan - tial wealth. The husband sought to disregard the prenuptial agreement, but the UK Supreme Court held that the agreement should be largely upheld. In doing so, the UK Supreme Court put forward the following test: “The court should give effect to a nuptial agreement that is freely
entered into by each party with full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” The case has been interpreted by lower courts since the judgment was delivered and, at pre - sent, there are two major grounds on which the agreements can be challenged: • the circumstances under which it was entered into were flawed – ie, there must be financial disclosure, independent legal representation and no undue pressure; or • the outcome is unfair (which the courts seem to interpret as not meeting the parties’ needs). 2.6 Cohabitation The law has always recognised differences between its treatment of cohabitants and its treatment of married couples (and civil partners since 2005 and same-sex married couples since 13 March 2014). There is no equitable distribu - tion of assets in cases where the parties are not married. Unmarried couples who are not engaged must rely on civil law to establish any property rights that they may have. The key laws that affect the division of assets for unmarried couples include: • express declarations of trust as to the division of property;
• constructive trusts; • resulting trusts; and • proprietary estoppel.
An unmarried partner is therefore exposed if they cannot engage any of these principles and will usually have no direct claim to assets of their
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