DAVID GLYNN’S LETTER ON PRENUPTIAL AGREEMENTS, SOUTH CHINA MORNING POST, 22 NOVEMBER 2011

“I read with interest the report, “Let couples have prenuptial agreements, say lawyers” (November 4).

This subject has been controversial for many years.  Up until the Supreme Court decision in England in the case of Radmacher and Granatino, handed down on 20th October 2010, the courts had not enforced prenuptial agreements.  There were a handful of cases prior to Radmacher where family judges in particular cases held on the facts that it would be unfair to allow a party to resile from an agreement which had been acted upon by the parties.

It is important to stress that the Radmacher decision is a decision of the Supreme Court in England.  It has yet to be followed in Hong Kong, and the area of prenuptial agreements is in its initial stages of development.  Several British experts are of the view that the Law Commission may lay down different guidelines or, indeed, overrule the principles adopted by the Supreme Court in the Radmacher case. 

In my view, a number of lawyers in Hong Kong are placing too much reliance upon prenuptial agreements being recognised as a matter of course by any court subsequently dealing with a financial relief application where a Radmacher-type prenuptial agreement has been entered into. 

I believe that the principles and guidelines laid down in Radmacher need to be applied on a case-by-case basis as each particular matter will depend on the matrix of facts surrounding the case. 

Whether a prenuptial agreement will be recognised in Hong Kong following Radmacher is yet to be determined and even if Radmacher is recognised, the ultimate decision will depend on the judges who will need to adopt a balanced and common sense view as to what is fair in each particular case.  What was fair when the agreement was entered into may not be fair when it comes to be enforced. 

The law is in a state of flux and what may be the acceptable situation now may change in the years to come with the introduction of legislation not expected to take place for a considerable period of time.

I agree that it is desirable that couples should be able to enter into a form of prenuptial agreement but the task of laying down legislation is not an easy one and will require a lot of thought and intelligent drafting.  I do not see this happening in Hong Kong in the foreseeable future.”

DAVID GLYNN
SENIOR PARTNER
HAMPTON, WINTER AND GLYNN