It is not often that one can see a major developments of divorce law happening before one’s eyes. The decision of the Court of Appeal upholding a pre-nuptial agreement in Radmacher (formerly Granatino) v Granatino [2009] EWCA Civ 649; [2009] WLR (D) 227 will no doubt be distinguishable from others on the facts. Their Lordships’ careful analysis of the development of the law will, however, be persuasive in favour of enforcing (or, at least, giving serious weight to) ante-nuptial agreements for a wider range of future cases.
The case involved a marriage between German and French nationals. The wide, who was from a wealthy family, argued that an ante-nuptial agreement prevented the husband from claiming against her fortune. The judge had appeared to consider the pre-nuptial agreement as a factor but had given it insufficient weight, and the resulting exercise of her discretion under s25 of the Matrimonial Causes Act 1973 was wrong as a result.
Perhaps the most interesting aspect of the judgment of Lord Justice Thorpe is the way in which he charts the development of the law through his own judgments over the past decade.
Another aspect of interest is the weight given to the fact that the UK is out of step with other EU jurisdictions, emphasised by the fact that both parties came from places where ante-nuptial agreements are enforceable. Lord Justice Thorpe said (in paragraph 53):
“in future cases broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties freely entered. This is not to apply foreign law, nor is it to give effect to a contract foreign to English tradition. It is, in my judgment, a legitimate exercise of the very wide discretion that is conferred on the judges to achieve fairness between the parties to the ancillary relief proceedings. “
The judgment can be found on the Family Law Week web site. Another passage worth referring you to concerns two other aspects – the government’s brief interest in reform and the attitude of those who, like us, advise in this area. The passage begins at paragraph 18:
18. The government however, retreated without further explanation from its earlier stated intention and experts were left to contemplate a future without legislative reform.
19. The existence of an ante-nuptial contract in any case required the judge to consider what weight it should be given as one of the circumstances affecting the exercise of the Section 25 discretion. Over the following decade there is a clear trend in the reported cases: greater weight was being given to properly negotiated ante-nuptial contracts not vitiated by any abuse or manifest unfairness. What I said in Crossley v Crossley [2007] EWCA Civ 1491 contrasts well with what I had said in F v F more than a decade earlier. This trend is carefully reviewed by Baron J in paragraphs 111-129 of the judgment below.
20. Less well recorded is the impression that specialist practitioners were, with increasing frequency, instructed by affluent clients to draft ante-nuptial contracts. This trend no doubt influenced the report published by Resolution in 2005 entitled “A More Certain Future – Recognition of Pre-marital Agreements in England and Wales.” In its conclusion this carefully researched report urged that pre-marital agreements should become legally binding and enforceable subject to a single overriding safeguard of significant injustice.
Subsequent paragraphs draw attention to the possibility that uncertainty in this area may be a deterrent for those considering marriage, particularly those who have been divorced before, including those who “wish to regulate the future enjoyment of their assets and perhaps to protect the interests of the children of the earlier marriages upon dissolution of a second marriage”.
Where does this leave those who want to make their own decisions? It is clear that pre-nuptial agreements will no longer be ignored or struck down as a matter of principle. It is equally clear that the court’s discretion under S25 will not be elbowed aside by the parties’ own decisions. In this case, the husband had taken no advice, but he had had ample opportunity to do so, and the court was persuaded that he understood clearly what had been agreed and what the implications were of that agreement.
We have been advising clients for a long time to make pre-nuptial agreements notwithstanding the doubts about their applicability in UK courts. This case removes much of the uncertainty. Like any agreements affecting property, however, the details, both of thw wording and of the circumstances, must be right.
Contact Lisa Bolgar Smith or Felix Appelbe on 020 7242 7000 for advice on this or any other aspect of actual or prospective divorce.
