Divorce law differs from country to country and different considerations are applied in determining division of the assets. Many of my clients see the antenuptial contract as being a one hundred percent binding contract which must be strictly applied at time of divorce. This isn’t however always the case.
Courts in England and Wales see marriage as an institution and not a contract. The English courts view the wife’s contribution to the marriage in raising the children and allowing the man to earn money and further his career in a very serious way. Any prenuptial contract in England and Wales that tries to exclude the wife from benefitting counts for less.
American courts also, like in England and Wales, place needs first and look at fairness considerations before deciding how a prenuptial contract should be applied at time of divorce. Some international divorce lawyers do however argue that a contract is a contract and should be strictly adhered to and enforced.
A big international case which recently made headlines worldwide in London regarding the enforceability of the antenuptial contract is that involving a rich German lady, Katrin Granatino, who married a poor Frenchman, Nicolas Granatino. At the time of the marriage Granatino signed a prenuptial agreement wherein he agreed that he would get nothing if the parties divorced.
Later on however he claimed that before he signed the prenup he did not have proper legal advice and he was only aware at the time of divorce as to how much money his wife had. The husband initially in 2007 was awarded only one million pounds by the court. The Supreme Court judgment is expected soon. Ms Radmacher really has over 54 million pounds in the bank and stands to inherit more and he says he did not know her true value money wise at time of marriage.
The abovementioned case raises several questions as to the enforceability of an antenuptial contract. I personally do not believe that two people who want to marry should use the same attorney to draft the prenup before getting married without both having obtained independent legal advice first.
I believe that at the time of signing the prenup the parties should also have each signed an affidavit stating that they are aware of what the other party’s assets are and that they have made a true and accurate disclosure of their own assets. The affidavit should also state that they have sought independent legal advice to their spouse prior to signing the contract.
I have just seen it happening so many times in our law that parties allege that they were forced to sign the prenup on the way to the wedding for example and that they never had time to read it. We need to place measures to ensure that parties are well aware of what they are signing.
I have also seen contracts that totally exclude the rights of their partner to share in equity at time of divorce. I believe that even though the prenup is a valid contact, fairness considerations should at times also apply at time of divorce to ensure fairness. The truth of the matter really is however that when parties marry they must realise and plan ahead for a potential divorce years later.
article written by Cape Town divorce lawyer, Peter M Baker