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Lord Wilson expresses support for binding pre-nuptial agreements

Supreme Court Justice defends long-term maintenance in appropriate circumstances

Lord Wilson of Culworth has expressed support for binding pre-nuptial agreements. In a speech to the University of Bristol Law Club, he said à propos such agreements:

"My own view is that we have now reached the stage in which, if acting with appropriate care and understanding, parties should be allowed to elect the sort of marriage which they want."

Recalling that he had been a member of the Court of Appeal that had ruled in Radmacher v Granatino [2009] EWCA Civ 649 that Mr Granatino should be held to the pre-nuptial contract agreed with Ms Radmacher, he said:

"One view is that in those circumstances parties should not be able to opt for marriage-lite, in which the law's verdict about the extent of their obligations on divorce in the light of all the circumstances which have arisen is overridden by what they chose to agree perhaps many years earlier. I wonder, however, whether by modern standards, that view is too patronising. Does it make our law inappropriately intrusive into personal, adult, arrangements?"

He noted that the Supreme Court's decision in that case, upholding that of the Court of Appeal, was that the contract would not be upheld if it would not be "fair" to hold a party to it. He asked "[b]ut what, in this context, would be unfair? Clearly a contract which makes less provision for a party than he or she would have secured under the ordinary law does not, on that account, generate an unfair outcome; any contrary conclusion would make the pre-nuptial contract not worth the paper on which it was written. So at what point does the relevant unfairness kick in?"

Lord Wilson's address set out the historical development of the financial consequences of divorce. Considering current issues confronting practitioners, he referred to the possibility for periodical payments to continue to be made by the husband to the wife (and in appropriate circumstances vice versa) "for many years following the divorce, sometimes (unless she remarries) even until one of them dies". He commented:

"The trouble is that it is usually unrealistic to tell a wife, left on her own perhaps at age 60 after a long marriage, that, following payments for say three years, she must fend for herself. So we judges have to strike a difficult balance. In my view it betrayed a lack of insight when, last month, [a peer] suggested that, when we do decide to award long-term maintenance, we are motivated by antiquated notions of chivalry. . . . Apparently a new study confirms that, notwithstanding the existing powers of the court, husbands tend to make a far stronger economic recovery from divorce than wives."

For the full text of Lord Wilson's speech, click here. For the study (of the Chartered Insurance Institute), mentioned in Lord Wilson's speech, click here.

26/3/17