Paven Basuita of Osbornes’ family law department considers whether or not William and Kate should enter into a pre nuptial agreement.
Amid the speculation surrounding the recently announced wedding between Prince William and Kate Middleton, one question which lawyers are asking is whether or not the parties will enter into a pre-nuptial agreement. If they did, this would be a major departure for the Royal Family because as far as is known, no other Royals have entered into such an agreement. In fact, Prince Charles famously went against his legal advisers and chose not to have a pre nuptial agreement before his marriage to the Duchess of Cornwall.
Given the propensity for Royal divorces, a pre-nuptial agreement could benefit both parties to the marriage. From the Royal Family’s point of view, a pre-nuptial agreement could be drafted to try and limit the claims which Kate would be able to make against William in the event of a divorce. For example, the agreement could set out that Kate would not be able to make a claim on defined areas of William’s wealth, such as his inherited wealth. It could also set out how much she would receive in the event of a divorce by way of lump sum provision, property transfer, maintenance and pension sharing. Whilst it is not possible for pre nuptial agreements to oust the jurisdiction of the court, a pre nuptial agreement could act as a disincentive to either party issuing contested proceedings, thereby reducing the risk of a highly publicised contest regarding the finances. This is a particularly relevant concern given that the media are now allowed access to the family courts in certain circumstances.
From Kate’s point of view, a pre nuptial agreement could benefit her by providing her with a minimum financial settlement in the event of a divorce. With a tendency for the Royal Family to “close ranks” in the event of a divorce, this could provide her with a level of protection which she could seek to rely on if the parties did separate.
If the couple do wish to enter into a pre-nuptial agreement they will have to take careful heed of the recommendations made by the Supreme Court in the recent case of Radmacher v Granatino. Whilst the Supreme Court in that case indicated that the court should give effect to pre-nuptial agreements this is subject to some important caveats. Namely, the agreement must be freely entered into with the parties fully appreciating the implications of it and it must be fair to hold the parties to the agreement. The court makes clear that a pre-nuptial agreement which does not provide for the needs of the financially weaker party should not be upheld by the courts. These factors will need to be taken into account by the lawyers drafting any pre-nuptial agreement if the agreement is to be given decisive weight in the event of a divorce. Finally, although the parties may well be more interested in planning the big day, if they are to enter into such an agreement they would be advised to start soon particularly if the rumours are correct that the Royal Wedding is to take place in Spring next year. One of the factors which will inform whether an agreement is considered to have been freely entered into will be whether the parties had an opportunity to take full legal advice and reflect on the matter, without being under pressure either from each other or from the circumstances.
Paven can be contacted at pavenbasuita@