Wednesday, 20 October 2010


Bad media reporting of the law drives me mad.

Radmacher v Granatino [2010] UKSC 42

is a very interesting case, out today from the Supreme Court - it does not however stand as authority for the proposition that pre-nups are binding - if you took your legal advice from the media - then you would be in trouble -

This is in the second paragraph of Lord Phillips P's judgment:

2. A court when considering the grant of ancillary relief is not obliged to give
effect to nuptial agreements – whether they are ante-nuptial or post-nuptial. The parties cannot, by agreement, oust the jurisdiction of the court. The court must, however, give appropriate weight to such an agreement. This appeal raises the question of the principles to be applied by the court when considering the weight that should be attached to an ante-nuptial agreement.

Please journalists - read read read!  There has been no change in the law today.  Prior to this judgment - the Courts were required to give great weight to pre-nups and to ignore them where they are unfair - that is what the Supreme Court re-confirmed today.

Given the facts of this case - 

9. The appellant (“the husband”) is a French national. The respondent (“the wife”) is a German national. They signed the ante-nuptial agreement in Germany on 1 August 1998. The husband was then aged 27 and the wife 29. They were married in London on 28 November 1998. They had two children, Chiara, born on 4 September 1999 and Chloe, born on 25 May 2002. In October 2006, after 8 years of marriage, they separated.
10. The wife petitioned for divorce in the Principal Registry of the Family Division that same month. The husband cross-petitioned in November. They agreed to proceed undefended on cross decrees and were divorced in July 2007. 
12. The ante-nuptial agreement was drawn up in Germany by a notary. It contained a choice of law clause that provided that the effects of their marriage, including the laws of matrimonial property and succession, were to be subject to the law of the Federal Republic of Germany.

the couple married on the basis of an agreement binding in Germany - the pre-nup was always going to be enforced - but that is not always going to be the case -  this is what Lord P went on to say:

83. So far as concerns the general approach of the court to ante-nuptial agreements, Wilson LJ at para 130 endorsed the following comments of Baron J at first instance
“111. I am certain that English courts are now much more ready to attribute the appropriate (and, in the right case, decisive) weight to an agreement as part of ‘all the circumstances of case’ [within the
meaning of section 25(1) of the Act of 1973] …
119. Upon divorce, when a party is seeking quantification of a claim for financial relief, it is the court that determines the result after applying the Act. The court grants the award and formulates the
order with the parties’ agreement being but one factor in the process and perhaps, in the right case, it being the most compelling factor …”
We also would endorse these comments.

That is what should have been reported!

Try harder journalists (if you want help and you will pay - then please leave your details in the comments box below)

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