This week the Supreme Court is hearing the case of Radmacher v Granatino, with Mr Granatino arguing that the prenuptial agreement that he signed with his former wife, German heiress Katrin Radmacher, should not be upheld. English law does not automatically uphold a prenup. It is a factor to be taken into account in determining an overall settlement. We do not yet have law which automatically recognises pre-nuptial agreements and I, for one, have argued against such agreements becoming automatically legal. I far prefer judicial balance, to be weighted in favour of the underdog. I am content with the current position. Whether that remains the case after the forthcoming election remains to be seen.
What follows is Ashley Murray’s guest post about the case and its likely outcome. Ashley is Recorder and Barrister at Oriel Chambers in Liverpool: the home of the Beatles, Liverpool and Everton FC, the River Mersey, the Walker and Tate Galleries, the Albert Docks, “Scouse” (stew) and its people, famous for their unique sense of humour.
Ashley Murray has a practical, refreshing take on family law, which is why he makes a very good lecturer on the subject. In his post about Radmacher v Granatino, he discusses a different angle. He looks at women’s struggle for emancipation and the equality women have earned, in relation to all the factors to be taken into account in section 25 of the Matrimonial Causes Act. He emphasises the role played by Mrs Justice Baron in the original hearing before it went up to the Court of Appeal, and the pivotal role that will be played by Baroness Hale (above) who, I’m proud to say (because I am one too), is a Yorkshire woman.
Ironically, as he accepts, the Radmacher case is turned on its head because it is brought by a man against a woman.
I would love to be in the Supreme Court, listening to the arguments. I have considerable respect for both Richard Todd QC, who appears for the wife, and for ‘Il Maestro’: the peerless Nicholas Mostyn QC, who appears for the husband. That is not only because of the supremacy of his craftsmanship as a lawyer and advocate, but because he also has that rarest quality: he treats every client with the greatest respect, every instructing solicitor in the same way and every case as his last. He is a giant amongst his superb fellow family barristers. And purely from a personal perspective, I hope he succeeds before the Supreme Court in this case.
Can there really be anything more to be said in advance of the Supreme Court’s ruling in the Radmacher v Granatino appeal? We have had articles, roadshows, podcasts, blogs and no doubt myriad legal tweets on the subject. In fact, in every which way and more that any copy can be squeezed out of the issue of prenuptial agreements, we have seen the great, the good and the not so good have their shot. Now that nothing more is left unturned about the decisions themselves, we have even more column inches about what the Supreme Court’s decision may turn out to be. Is there no end to this?
Does this, actually, tell us something more about our profession than the subject of pre-nuptials? Is there more than a little anxiety around that the work increase experienced by many ancillary relief practitioners over the last two decades is on the decline? Do all these practitioners writing on the subject really have a burning passion to contribute to the jurisprudence of the subject or is it, in reality, more of a jockeying for position to attract what is seen as the best bet for a new source of revenue since White (2000)?
Buried in the hype, we read the noble-sounding comments that couples considering marriage are being put off by the present absence of the freedom to contract and the perception that we need greater harmony with the Euro zone on this subject. In fact – as I suspect most working practitioners silently recognise – this is complete rubbish, spoken by those with little knowledge of dealing with everyday divorce cases or symptomatic of having spent too much time in ivory legal towers several planets away from the everyday life of most of the population.
I can guess, confidently, that most people had no idea that they had been deprived for years by the fact that they could not enter into a binding legal agreement concerning their married state in advance of the marriage itself. Most of us have little prospect of real asset value for division at the end of a relationship anyway. The unpleasant truth is that prenuptial agreements are, whatever is said to the contrary, a device for the rich to remain rich – and usually the male of the species, at that.
If prenuptial agreements are again encouraged in the Radmacher appeal, then the great British public will have unleashed upon them a frenzy of legal activity to ensure that in every newly married couple’s home, whatever their financial status, somewhere next to the will and the building society book is stored the prenup. The prediction is that most of these agreements will wither on the vine, never to be looked at again unless a divorce occurs. Because they will not be reviewed frequently enough, the experience of many will be soured by the feeling that this was just another con of lawyers and an expensive con at that.
What better way to ensure an argument between two happily married individuals than to have to review a prenup every three years? Who in their right mind wants to be sitting round the kitchen table to debate about how better to divide what they have, just in case things don’t work out in the marriage after the wife announces she’s pregnant? I suppose the answer is, probably, those couples who would up to now, without any encouragement, have raised the issue of the prenup in the first place. And so we turn full circle and arrive back at the rich and wealthy and in most cases, although not in Radmacher’s case, the male.
It is sadly ironic that a device originally used more than a century ago, to protect the married woman’s possessions from the effect of the law of coverture (which gave the husband overall control over her assets), is now typically used by the husband-to-be or his family to protect his possessions from her claims to “fairness” in divorce distribution.
The increased awareness of the prenuptial agreement will, if not checked by strong safeguards, expose many more women to an unfair and, at times, overbearing pressure in the run-up to the wedding ceremony, when their minds may not be focused upon securing a certainty of financial outcome in the event it all goes wrong.
It appears that the woman judge in the first instance decision of Radmacher’s case (Mrs Justice Baron) and Baroness Hale in Macleod’s case (2008) clearly understood this reality. It also appears that the Court of Appeal in Radmacher just did not get it, if their apparently dismissive approach to the need for independent legal advice is anything to go by.
Indeed, it is instructive that for all his commercial experience, the husband in Radmacher’s case surely succumbed to the very pressures of signing up as mentioned above. With his background, he would have been the first to have warned any of his office associates to get the right advice before doing so.
Women have had a long and tortuous struggle in our family law jurisdiction to complete the reforms started in the middle of the 19th century for the right to stand shoulder to shoulder with men at the start of the 21st century, in the process of the section 25 statutory exercise in divorce. Of course, reading the Court of Appeal’s judgment in Radmacher, the more cynical may say that we were witnessing a politically motivated decision with a view to forcing the issue in advance of the Law Commission’s report on the same subject.
Fortunately for women, Lady Hale and Mrs Justice Baron may yet have the final say.
Ashley Murray is Barrister-at-Law at Oriel Chambers in Liverpool. One of the limited number of senior Circuit specialists outside London with a recognised big money ancillary relief practice, he is known for his knowledge and ability in this area of the law.