Radmacher v Granatino
Questions 2 and 3:
What is so special about this marriage is the spouses are neither English citizens nor of the same nationality.
In addition to this, the marriage was
celebrated in Oxford, hence the
petition being filed in England, but a pre-nuptial agreement had been entered
into in Germany.
NB Vocab: To file a
petition
Summary:
The facts concern the breakdown
of a marriage between a German lady
(whose maiden name was Radmacher)
and a French banker (called Granatino) in London in 1998.
Probably on account of the fact
that the amount of money at stake
was quite substantial (but also
because the case involved a mixed couple
and finally because the situation was that of a defended divorce) the case was heard in first instance by the High Court.
Given that the petitioner had not taken legal advice before signing the pre-nuptial agreement and
that he had then left banking to take up his studies in Oxford at the time of
the divorce, the High Court judge chose to modify the terms of the pre-nuptial
agreement entered into by the parties, granting the petitioner (Granatino)
enough money to purchase a house in
addition to a comfortable annual income.
NB: After + V-ING /
Before + V-ING
Had not taken legal
advice: PAST PERFECT
To enter into
an agreement
Mrs Radmacher then appealed the High Court decision to the Court of
Appeal, which reversed the trial
court decision and held that the
pre-nuptial agreement, although entered into in Germany, should have been given its full force.
In turn, Mr Granatino appealed the Court of Appeal’s decision but his
appeal was dismissed by the Supreme Court, (which upheld the Court of Appeal’s finding).
Lady Hale: Dissents with the majority opinion on 2 grounds:
A. Definition of marriage:
Lady Hale contends that
marriage is both a contract and a status.
This means that the parties are
not entirely free to determine the full terms of the contract, but that these
terms are instead determined by the law of the land. She also considers that
modern forms of marriage give the parties a lot of leeway but do not allow them to neglect their fundamental duty to
support one another and their children.
B. A gender issue:
1. The object of a pre-nuptial agreement being for one or both parties to protect their assets, one may agree with Lady Hale that the idea of the agreement would be to deny the weaker spouse 50% of the couple’s assets in case of divorce. This is debatable as more and more people now have careers but it appears that there is a gender issue because – although this is not the case in Radmacher v Gratanino – pre-nuptial agreements benefit the rich which statistically tend to be male. (See The Guardian’s article: “Prenup Agreement enforced under UK law”)
On the same topic you may also be interested in this Case comment (available on the UKSC blog):
(The last paragraphs are very relevant to the points discussed this morning and summarize Laday Hale's arguments very clearly.)
Lady Hale disagreed that the approach of the Court of Appeal to the outcome of the case should be upheld. She considered that the award of the Court of Appeal undermined the importance attached to the status of marriage in English law, and the irreducible minimum obligations inherent in that status. One such obligation, in the case of a parent who has irredeemably compromised her position in the labour market as a result of her caring responsibilities, is provision for her future needs even after the children have grown up. It would be unfair for an ante-nuptial contract to deprive the economically dependent spouse of that protection, which, by English law, inheres in the status of marriage and survives its dissolution ([191-193]). A further consideration is that parents often expect to continue to provide a base and a resource for their adult children. For these reasons, Lady Hale’s view was that although the judge who heard the case did not give enough weight to the agreement in this case, the Court of Appeal erred in treating these parents as if they had never been married. She would have varied the judge’s order so that the husband was entitled to his English home for life ([192-195]).
Lord Mance agreed with the conclusion reached by the majority and with most of its reasoning, but like Lady Hale, expressed no view on the binding or other nature of an ante-nuptial agreement. He considered that the difference between the majority and Lady Hale in the formulation of the test to be applied in exercising the statutory discretion in cases where there has been an ante-nuptial agreement was unlikely to be important in practice, although his own inclination, in common with the majority, was to take as the starting point and agreement that was made freely and with full appreciation of the circumstances.
Lady Hale concluded her dissent with the words
“Marriage still counts for something in the law of this country and long may it continue to do so” ([195]).
Read out of the context of the dissent as a whole, and the corpus of her judgments in general and particularly on matters of equality in matters of gender and sexuality, this could be taken as a paean to conservative family values. Cleary it is not – it is a warning that the legal protections afforded by the English law of marriage should not lightly be sacrificed in the name of legal certainty or apparent progress. Lady Hale is rightly anxious that presumptive validity of ante-nuptial contracts could further weaken the position of economically vulnerable (usually) women, and she is right to underline the need to protect parents from the long-term devastation that may be wrought to the earning capacity of the primary carer and home-maker. These concerns are not necessarily at odds with the approach of the majority.
According to Lady Hale, the muddled state of the law on marital agreements can be addressed only by systematic review and reform. There is a pressing need for the matter to be dealt with rationally and comprehensively by Parliament, based on detailed proposals by the Law Commission, following careful investigation of the full conspectus of relevant considerations. It was not an issue to be resolved in an individual case, particularly not one with a far from typical set of facts ([133-136]).
The Law Commission, in its current investigation of the issue, will doubtless have regard to the Radmacher judgment, but it is in no way bound by that judgment in making its proposals. Whatever these may be, a proper legislative solution is likely to be many months yet in the making. While that it is awaited, it is helpful to matrimonial practitioners and those whom they advise that the Supreme Court has provided guidance to the courts in their approach to ante-nuptial agreements.
