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Earlier this month, the Supreme Court ruled that “decisive weight” should be given to pre-nuptial agreements signed by spouses before getting married (20 October).
Yet, the most experienced family judge in the Supreme Court, Lady Hale, disagreed with her eight judicial peers arguing that the Government should be responsible for family law reform.
The divorce case concerns German heiress Katrin Radmacher. When Radmacher married her husband Nicolas Granatino the pair signed a pre nuptial agreement in Germany agreeing that one wouldn’t make a claim to the other’s wealth should they divorce.
Granatino failed to keep that contract and when the couple split he instructed Payne Hicks Beach partner Fiona Shackleton to challenge the enforceability of the agreement through the English courts. Shackleton instructed 1 Hare Court’s Nicholas Mostyn QC to represent Granatino. The pair also represented Paul McCartney in his divorce from Heather Mills.
An earlier High Court decision went in Granatino’s favour, granting him £5.5m of his wife’s fortune, an award that would afford him an annual income of £100,000 for life and to buy a home in London.
The Court of Appeal cut that award down and ruled that the husband should only be granted funding for his role as the father of their two children and not for his own long-term needs.
At the Supreme Court that decision was upheld, meaning that in this particular instance the agreement was binding because it was entered into freely by both parties. This does not mean that pre-nuptial agreements will be binding in every case, though.
Instead the decision gives additional weight to the contract and gives guidance to the court on what tests need to be applied when considering its enforceability.
Family lawyers, who have long lobbied for reform of family law, broadly welcomed the decision, but Schillings partner Rachel Atkins warned it could have some drawbacks for divorcing women.
She says: “There’s potential for the financially weaker party, often the wife, getting a raw deal as they may have made a real contribution to the family finances but under the marriage contract agreed not to receive any part of it.”
Supreme Justice Hale picks up on this in her dissenting ruling: “Above all, perhaps, the court hearing a particular case can all too easily lose sight of the fact that, unlike a separation agreement, the object of an ante-nuptial agreement is to deny the economically weaker spouse the provision to which she – it is usually although by no means invariably she – would otherwise be entitled.”
Disputes over pre-nuptial agreements are few and far between, yet family lawyers agree that however unromantic they appear, pre-nups can save much heartache in the long term.
While this ruling gives added weight to the contract, it is by no means incorporated into English law.