L3 S2 In-Class Test Correction

Prenuptial agreements ‘should be legally binding in divorce cases’

1. Pre-nuptial contracts are private agreements entered into before marriage by both parties who wish to provide for the division of their assets and property in the case of a divorce / on the dissolution of their union.

Since the landmark case Radmacher v. Granatino (2010) UK courts have been empowered to give full effect to such agreements, although they may decide not to do so and redistribute some of the assets as they see fit.

The Law Commission proposes that pre-nups should be legally binding on courts provided that / on condition that both parties had received legal advice and revealed all their assets to the other party when signing the agreement, but also that the terms of the contract do not jeopardise any party’s material needs or those of the children after the divorce.


2. Should they be followed, these recommendations would definitely affect the competence of UK courts as the terms of the pre-nups would then necessarily have to be enforced. The courts’ prerogatives would then be limited to solving disputes / claims over whether the terms of the pre-nups infringe the fairness of maintenance payments or the financial needs of the parties.


What do you think of these recommendations: students’ own answers…


3. Lady Hale’s dissenting opinion in Radmacher v Granatino stems from the very nature of marriage which, she reminded, was not only a contract binding the spouses but also a status. In her view, pre-nups should not be given legal force as the very purpose of these contracts goes against / contravenes a cornerstone of the marriage institution according to which spouses pledge to provide for each other.
The recommendations of the Law Commission may then be seen as a compromise since they would allow each party to keep their own assets without leaving the other spouse and the children destitute / penniless. Pre-nups could then be enforced without hampering / encroaching on the core value of marriage that requires spouses to provide mutual assistance. Lady Hale’s argument might then be qualified.


Indian couple who lost their law firm jobs due to ‘forbidden love’ at centre of first caste discrimination tribunal 


1. The case at hand revolves around / raises the issue of caste discrimination. An Indian couple who met at a legal firm were the victims of wrongful dismissal and unfair constructive dismissal as senior colleagues strongly disapproved of their union on account of the fact that / on the ground that Vijay Begraj was from a lower caste than his wife Amardeep.
The couple took a claim against the firm and also convinced the Lords to insert a new provision in the law that would recognise caste as a protected characteristic.
Since the case took place at work / in a work context / in a work-related environment, the Employment Tribunal is competent to hear this case.

2. Anti-discrimination laws have protected UK residents against discrimination since the 1960s. Today, the Equality Act 2010 consolidates previous anti-discrimination legislation that applied to specific fields.
This act protects people against nine strands of discrimination, namely: age, disability, faith and belief, race and ethnicity, sex and sexual orientation, but also gender reassignment, marriage and matrimony, pregnancy and breastfeeding. People with a protected characteristic (but also carers of people with such characteristics) may have a claim if they have been the victim of a form of discrimination during the provision of public or private services, because they belonged to a protected category or because people believed so.
Also note that / One should also bear in mind that the UK is also bound by Article 19 of the Treaty on the Functioning of the EU as well as by Article 14 of the ECHR incorporated through the HRA 1998.
Lastly, the Equality and Human Rights Commission (EHRC) supervises the application of the Equality Act and assists complainants in legal proceedings.
3. Students’ own answers. (The text p. 79-80 of the booklet also sets out a list of points that students could either corroborate and illustrate, or challenge.)


Judges warnsof pitfalls of surrogacy after mother disappears before giving consent

1. This case involves a British couple in a civil partnership who had entered a surrogacy arrangement with a clinic in Hyderabad. After having given birth to twin babies, the Indian surrogate mother mysteriously failed to formally consent to the children being brought back to the UK. The couple took legal advice and their solicitor arranged for a consent form to be sent out to the clinic so that the gestational mother could confirm she agreed to give up the children for adoption.
After numerous failed attempts to obtain this document, the couple had no other option but to bring an action before Portsmouth County Court to be granted a parental order, i.e. a court order giving the intended parents the custody of a child born through surrogacy.
UK law requires that the commissioning couple should be able to establish that the surrogate mother gives consent within six weeks after the babies’ birth. The High Court Judge (to which the case had been transferred), however, deemed that in this particular case, the couple had acted in good faith by trying to contact the surrogate mother by every possible means. Mr Justice Baker thus decided to grant a parental order without having received the gestational mother’s formal consent.

2. See booklet

3. Students’ own answers. This case, however, invites students to reflect upon the predicament of “stateless children”, that is children born from a surrogate mother living in a country where surrogacy law differs from UK law that may be left in problematic situations. Indeed, whereas in England the legal mother is the birth mother / the woman that gives birth to the child, the legal mother in the Ukraine, for instance, is the commissioning mother. In such cases, British commissioning parents may have to get involved in a legal battle to have the child brought back to the UK and be granted custody / be granted the custody of their child.

See the following article taken from The Daily Mail:
http://www.dailymail.co.uk/news/article-1093922/Couple-win-fight-custody-stateless-surrogate-twins.html

See also this second article from The Guardian:
http://www.theguardian.com/commentisfree/2011/feb/09/surrogacy-laws-children-at-risk

Gay couple threaten to sue UK government over same-sex marriage

1. Due to delays / On account of delays in implementing parts of the Marriage (Same-sex couples) Act 2013, a civil union may currently not be converted into a marriage. Therefore, Michael and Paul Atwal-Brice cannot get married unless they dissolve their civil partnership first. They would then be compelled to argue in court that they wish to dissolve their union in order to get married, which seems highly paradoxical.

2. Paul is referring to the Civil Partnership Act 2004, which provides that / according to which couples who wish to separate must prove that their union has irretrievably broken down by resorting to one of the following set grounds: desertion, unreasonable behaviour, two years’ or five years’ separation. Note that the ground of adultery does not apply to same-sex couples intending to separate.


3. The couple claim that by failing to enable same-sex partners to get married, the Marriage Act (2013) establishes a form of discrimination against gay couples that contravenes / goes against / infringes the Equality Act 2010 as well as Article 14 of the Human Rights Act (1998). The UK Supreme Court has the power to / is competent to determine whether the Marriage act should be reviewed to be made compatible with British Equality and Human Rights Law. Should Parliament fail to review its statute, Michael and Paul Atwal-Brice might decide to bring the case before the European Court of Human Rights.


UK Judges have ability to set ‘whole-life’ sentences, appeal court rules

1. The legal issue discussed in the article is whether UK law on ‘whole life’ prison sentences should be reviewed to be made compatible with / to conform to the European Convention on Human Rights. The question arose from the Strasbourg Court’s recent ruling that UK law lacked proper a review mechanism so that such sentences amounted to inhumane and degrading treatment forbidden by Article 3 of the ECHR.

2. A. Following the European Court on Human Rights’ decision, Mr Justice Sweeney passed a minimum sentence of 40 years’ imprisonment on McLoughlin but ruled out the possibility of handing down a whole life sentence.
B. Do you agree with Dominic Grieve that McLoughlin’s sentence was ‘unduly lenient’? Students’ own answers.

3. In what can be seen as a challenge to the European Court of Human Rights’ interpretation of UK legislation, the Court of Appeal argued that the Crime (Sentences) Act actually does provide for review mechanisms permitting the early release of prisoners in exceptional circumstances, so that this act actually respects Art 3 of the ECHR.
This Court of Appeal’s decision to reassert the validity of UK statutory law reflects the UK’s reluctance to give force to the ECHR’s decisions which are often perceived as encroaching on Parliament’s sovereignty.