04/28/2011 01:13 pm ET Updated Jun 28, 2011

Can the Prince Protect His Castle? Pondering a Royal Prenup

With the royal wedding fast approaching, and the public's obsession with the intimate lives of Will and Kate, many are asking "Will they have a prenup?"

If they lived in the United States, many would exclaim "they should!"; however in England, where prenuptial agreements remain legally unenforceable, such agreements are not as common -- even among the rich and famous (and royal).

In the US, and in NY especially, prenups have become commonplace. While some may think these agreements are unromantic and crass, there is also an argument that deciding finances before a marriage - when the couple is still very much in love -- can actually benefit the non-monied spouse and help secure a much better settlement than when the parties despise each other sometime down the road.

Couples can be particularly creative about what they include in their agreements. Even young couples, like Will and Kate, have been entering into prenups to determine the ultimate division (or lack thereof) of cash, businesses, real estate, cars, boats, art, jewelry, and numerous other assets before they are married. In many instances, they also provide for spousal support in the event the marriage ends. There is no set formula and the prenuptial agreement can be a unique and specifically tailored agreement to the relationship and the priorities of those individuals. As long as there is financial disclosure, legal representation (or informed waivers), proper execution, and the terms are not against public policy, the agreement should be enforced by the courts.

In England, however, it is still unclear what a couple can include and what the court will enforce. In the recent case of the German heiress, Katrin Radmacher, and her French ex-husband, Nicolas Granatino, Radmacher sought to protect her family fortune of over 100 Million Pounds. For the first time in British legal history, the court upheld the terms and Granatino walked away with very little (or a lot less than he was entitled to under British law). The court noted, however, that while it was recognizing the intent of the parties in that particular case, in the future it would still have the discretion to waive any pre- or postnuptial agreement, especially if the terms were unfair to the children of the marriage. "Unfair" can mean many things and lead to a lot of litigation.

Many Brits are confident that the decision in Radmacher's case is the first step to the enforcement of prenuptial agreements in England and the end to their reputation as the "divorce capital of Europe". Others find the decision insulting to the sanctity of marriage and British tradition, notwithstanding the fact that half of British marriages end in divorce.

Regardless, the problem remains that until the law is clarified, lawyers cannot give firm advice to their clients about what to include and whether it will be enforced. For now, British lawyers and their clients can take the lead of their US counterparts for creative ideas about how to preserve assets and provide for future spouses in prenuptial agreements and hope that the legislature sees the decision in Radmacher as a step in the right direction for family law in Britain.