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Radmacher v Granatino: prenups and postnups - what do we argue now?

Timothy Scott QC provides further thoughts on the Court of Appeal decision in Radmacher.

image of tim scott qc 29 bedford row
Timothy Scott QC, 29 Bedford Row Chambers

The much awaited decision of the Court of Appeal in Radmacher v Granatino [2009] EWCA Civ 649 was handed down on 2/7/09. It is undoubtedly the most important decision to date on pre-nuptial agreements in English law. Thorpe, Rix and Wilson LJJ all gave full judgments: the judgment of Wilson LJ sets out the factual history and is probably best read first as a matter of convenience. Each of the three judgements is penetrating and contains wide-ranging observations on ancillary relief law.

And yet the law on pre-nuptial agreements is still in a state of confusion. Why? Principally because the Court of Appeal in Radmacher has taken a significantly different view on a number of points to that taken by the Privy Council in MacLeod v MacLeod [2008] UKPC 64; [2009] 1 All ER 851. This is highly unusual. MacLeod was an appeal from the Isle of Man, but the relevant statutory provisions in the Isle of Man were identical to those in the Matrimonial Causes Act. In these circumstances a decision of the Privy Council is tantamount to a decision of the House of Lords and is usually treated as binding in practice on the Court of Appeal. However, in Radmacher the Court of Appeal felt able to take a different line. If only for this reason, it seems likely that the case will be subject to a further appeal to the Supreme Court.

Subject to a further appeal, some of the key points which emerge from the Court of Appeal judgements are:-

Thorpe LJ in his judgment stressed the European dimension to the case. Marriages in most, if not all continental European countries are subject to a matrimonial property regime which includes a pre-nuptial agreement. In Radmacher the parties had entered into a tailored agreement under German law which inter alia precluded either from making any claim against the capital or income of the other in the event of divorce. However, it should be noted that the law of some jurisdictions does not permit spouses to contract out of maintenance claims. It is always necessary to study the terms of any agreement and the law under which it has been made in order to understand its limitations as well as its terms.

The judgments amount to a collective plea for statutory reform. The matter is already in the hands of the Law Commission. It must be hoped that Parliament will not duck the need for reform. It is surely now obvious to all family lawyers that England is out of step with most jurisdictions both in the civil law and common law traditions and that our law is both out of date and in a state of confusion.