PRESS RELEASE
Radmacher v Granatino - Husband's appeal to the Supreme Court to be heard by 9 Justices on 22 March 2010.
The question whether English law will finally fall into step with Continental Europe and America in recognising the freedom of consenting adults to determine the financial outcome of their divorce is in the balance. Today the Supreme Court will review the enforceability of pre-nuptial agreements in this landmark case.
Basic facts
The Wife (W), a German heiress worth an estimated £100m and the Husband (H) a French former investment banker, now an academic earning £30k pa, entered into a pre-nuptial agreement which in the event of a breakdown of the marriage, made no financial provision for either party. In the event of a divorce in their home countries such an agreement would have been binding.
At first instance Mrs Justice Baron decided that to hold the H to the agreement, would be manifestly unfair, particularly as the agreement precluded claims even in circumstances of real need. She awarded a lump sum to the H of in excess of £5m.
The Court of Appeal was critical of Baron J's failure to recognise the pre-nuptial agreement in her award and H's award was restricted to provision indirectly in his capacity as a father whilst the children are minors.
Commentary
Emma Hatley, Partner in the Divorce and Family department at Stewarts Law, says:
"The result of the H's appeal, is keenly awaited by family practitioners and the public alike. Historically no political parties have shown any appetite to grapple seriously with the enforceability of pre-nuptial agreements and harmonise our laws yet the judiciary in lower courts have made clear that wholesale reform is for Parliament. It appears the fear of politicians is that to give pre-nuptial agreements binding force may undermine the institution of marriage.
But, on the contrary, it is arguable that England's place as the divorce capital of the world only increases the propensity of the financially stronger party to avoid marriage. In our global village the demands are rightly for certainty and respect for adult autonomy.
As the law stands, pre-nuptial agreements are just one consideration to be taken into account in determining a 'fair' outcome under the Matrimonial Causes Act 1973. Surely a sensible compromise would be for properly executed pre-nuptial agreements, entered into with the safeguards of independent legal advice and full disclosure, to be treated as presumptively valid. In such circumstances the courts power to intervene would be limited to rare circumstances where the provision made in the pre-nuptial agreement is either manifestly unfair or there is inadequate provision for children. Such a position would protect against injustice whilst providing much needed certainty.
It is hoped that the strength of the Supreme Court in this case (9 out of 11 Justices) reflects the gravity of the issue and the Justices will seize the opportunity to set a clear precedent for future cases, both in relation to international and purely domestic marriages. The alternative of deferring the decision until the Law Commission report on Marital Property Agreements in 2012 would be bitterly disappointing.
Either way the decision will have a profound effect on the way in which pre-nuptial agreements are dealt with in English law. English legislation needs to catch up - we must respond to social change and no longer dismiss prenuptial agreements as an immoral bargain."