This week’s edition of The Sunday Times carried a lurid headline, “An end to the goldmine divorce”, with accompanying pictures of the heiress Katrin Radmacher and her former husband Nicolas Granatino.  The latter couple’s spectacular and hard fought case involving the validity of a prenuptial agreement, made in Germany between a German and French national living in this country, is due to be the subject of a judgement by the judges of our Supreme Court , which is expected to give a general steer about the validity of prenuptial agreements in England and Wales.

The Law Commission, which recommends potential changes in the law to government, is also currently considering this area of the law. Professor Elizabeth Cooke of the Law Commission has now confirmed that various options will be put forward to Government, including recognition of prenuptial and postnuptial agreements and that the report will be accompanied by a draft bill for consideration by Parliament.

The argument in favour of change, according to her, is that people are being deterred from marriage by big pay-outs under the current law, and she states: “There is a certain amount of financial carnage when people get divorced. A well drawn up prenup can give greater predictability”.

With great respect to Professor Cooke, I do not think it is appropriate to describe a financial settlement between the parties as “carnage”. Nor do I agree with the argument that by signing a prenup, hundreds of thousands of people in this country who currently aren’t getting married will be heading off to the altar.

Couples are deliberately choosing not to marry, not because of the law, or any change to the law as envisaged, but because society has irreparably changed. Most people now aren’t now marrying too young or immaturely and then bitterly regretting it– whether shortly afterwards or years later. They aren’t leaping into the legalities until they are absolutely sure that they are making the right decision. Others that don’t marry, including some of those who are dependent upon state benefits, won’t marry either – with or without this proposed change in legislation.

I will be exploring the subject of prenuptial agreements in greater detail in a later post.

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. Continue reading »

Robin Charrot writes: Prenuptial and postnuptial agreements have been in and out of the news over the past year. Here at Stowe Family Law, the number of new enquiries about prenups and postnups has risen sharply. The same questions come up often: is such an agreement advisable, and what can be done to ensure that it is effective?

This was the subject of my talk on Thursday evening, when Stowe Family Law and Lane-Smith & Shindler, a firm of specialist trusts and estates practitioners based in central Manchester, held a joint seminar (above) at the Marriott Hotel in Hale Barns. The audience comprised of retail and private banks, accountants, investment managers and IFAs.

Speakers from both firms discussed the impact of relationship breakdown on family wealth, and advised on steps to protect family wealth. Marilyn Stowe spoke about the changes in ancillary relief law over the last 10 years, which have led to far larger payouts to spouses in big money cases. Geoffrey Shindler of Lane-Smith & Shindler explored the impact of this change in the law on family trusts, and described how trusts could be vulnerable to different forms of attack from spouses. Paul Davies of Lane-Smith & Shindler explained how different drafting techniques can be used to provide added protection to trusts.

I chose to speak about the rise of prenuptial and postnuptial agreements to their current status, and described the mechanics by which the agreements are constructed. At the time of writing, such agreements are extremely influential on decisions made by our family courts in England and Wales.

Because of the level of interest in this talk, and the question and answers that followed, we are reprinting the accompanying handout here. If you are considering a prenuptial or postnuptial agreement, we hope that this information is useful. This is an area in which Stowe Family Law specialises, so you can always leave a comment or contact us directly with any additional queries. Continue reading »

Prenuptial agreements are in the news again, and last Wednesday I had a conference at our Cheshire offices with Richard Todd QC. He is the lawyer who successfully persuaded the Court of Appeal to uphold the entirely one-sided prenuptial agreement in the Radmacher v Granatino case. Katrin Radmacher has managed to hold her entire £100million fortune intact after an eight year marriage. Mr Todd is a quiet, charming man – and devastatingly clever. My client is in very good hands.

It appears that there has been a huge rise in the number of people entering into prenuptial agreements, and on Thursday the BBC telephoned to ask if I could attend their studios in London for a live chat about prenups on Saturday morning.

However last Saturday was the “holiest” Sabbath Day in the Jewish calendar: the culmination of the penitential High Holy Days, which commenced with Rosh Hashanah (Jewish New Year) the weekend before and was followed by Yom Kippur (The Day of Atonement), which began on Sunday evening and ended last night. It is an intense period for reflection and self awareness. A period to consider what is right and acknowledge, no matter how hard it is, that which is wrong.

Continue reading »

My first client of the New Year contacted me whilst I was in Central London for the New Year celebrations.

On New Year’s Eve, at 11.30 pm I was snug in my fleecy dressing gown, cosily watching the freezing crowds on the Embankment on television when…. we decided on the spur of the moment to dash there ourselves to see in the New Year!  We quickly got into some warm clothes and rushed into the cold. We arrived with our champagne and plastic flutes, just in time, because at midnight the London Eye was lit by the most spectacular firework display,- shortly after which my parents telephoned to say “We’re watching London on the telly but we can’t see you….!” Not unexpected in a crowd of hundreds of thousands of people!

The excitement of that night was sadly at odds with the new client meeting. The lady lives abroad and she too was in London for the New Year. She was about to divorce and, although she and her husband had separated on several occasions during the course of the marriage, this time it was final. She produced an agreement she had signed: a post-nuptial agreement.

Continue reading »

Sir Mark Potter’s appointment in April 2005 to head the Family Division came as a surprise. He arrived apparently almost new to family law, having specialised in commercial law, and his appointment as head of the entire Family Court system was viewed by many commentators as unexpected – to put it mildly.

While there were those who thought he’d merely stay unnoticed in the background for a few years until he quietly retired, I’m pleased to see that hasn’t happened. Sir Mark seems to enjoy his job, giving judgments with relish, and those that I have seen are sensible, non controversial and clear.

He seems to be fair minded, with an instinct for what is “right” and he does his job in a straightforward way, lacking snobbishness and arrogance. Today, in an interview with the Times, he has given his backing to opening up the family court system in certain cases where the media have hitherto been forbidden- and closing them to the media in others. And I’m delighted he has.

Continue reading »

It appears that I’m not the only one with strong views about pre-nuptial agreements. The FT Weekend Magazine interviewed me for its lengthy cover story on this controversial subject, published this weekend.

The spoils of war

By Richard Tomkins

Pre-nuptial agreements may lack romance, but at least they make divorce a less messy business. That’s the theory, at any rate – the problem is that English law is almost unique in refusing to recognise them. Isn’t it time we made breaking up easier to do?

 (Extract)   Pre-nups may seem the ideal solution to the vagaries of the English divorce system, and Resolution, which advocates a non-confrontational approach to divorce, is strongly in favour. But not everyone is as enthusiastic. The most common criticism is that pre-nups are “unromantic” because two people who really love each other don’t go into a marriage wondering whether it will last. The Church of England says: “Christians believe that marriage is a gift from God. In the marriage ceremony, the couple make a public declaration of a life-long commitment to love one another, come what may. To anticipate a marriage’s breakdown before it has even begun completely undercuts its Christian basis.”

Marilyn Stowe, a high-profile divorce lawyer with her own firm, Stowe Family Law, says strains may arise where, as is typically the case, the pre-nup is imposed by an economically stronger partner on an economically weaker one. “Personally, I wouldn’t marry a person who wanted to impose one on me,” she says. “If you knew that your spouse, whom you were supposed to trust 100 per cent, had imposed that on you, wouldn’t it affect the marriage from the beginning? And if the agreement was for a period of years before it came up for review, wouldn’t you be thinking about what was going to happen at the end of that period – whether you were going to be chucked out? Continue reading »

I was interested to read an excellent article called Pre-nuptial agreements – a rethink required in this month’s Family Law journal. By Christopher Sharp QC of St John’s Chambers in Bristol, it contains an interesting review of the law in that area.

He begins with the famous case of Hyman v Hyman in 1929, where the House of Lords ruled that two parties could not agree to exclude the jurisdiction of the court, a position which remains to this day.

It means that in England and Wales, a prenuptial agreement will not be automatically upheld. Instead, an agreement of this kind is a matter for the court to take into account.

Since then various cases have sounded judicial warning bells, with judges questioning this approach, while informed judicial thinking has no doubt helped to shape the recent reference to the Law Commission who are examining whether a change of law is required to make these types of agreement automatically legally binding.

Mr Sharp canters through current law, including some well known cases such as Crossley v Crossley,(2008) 1FLR1467, where predictably the Court of Appeal indicated it was likely they would uphold the agreement, recognising that each party was in their own right a multi-millionaire, several times married and divorced. As I have previously posted, unfortunately the court only had the opportunity to withness intitiall skirmishes, as Mrs Sangster did not wait for the final ruling before abandoning her challenege.

It is clear that parties to a PNA should not assume they are unlikely to be upheld. To the contrary, it seems clear that PNA’s will be upheld – or at least parts of them -provided they are not unreasonable.

Continue reading »

Parents of prospective brides and grooms are coming to see me in increasing numbers, to ask about prenups.

My opinions on prenuptial agreements are well known. I don’t like them, do not believe that they are “socially necessary” and do not believe that they should be automatically legally binding. I would not have signed one myself – nor married anyone who asked me to as a precondition of marriage.

However, parents of prospective brides and grooms are coming to see me in increasing numbers, to ask about prenups. Many of these parents are wealthy, some are super-wealthy and others are not wealthy at all. What they share are concerns about what will happen if their children’s marriages break down. They don’t want any of their hard-earned cash to pass to the divorcing spouses, and they are determined to protect their money.

It’s understandable. But is it reasonable – or advisable – to expect a future son or daughter-in-law to enter into a prenuptial agreement? I’m not so sure. What is often overlooked is the effect of a prenuptial agreement on the marriage itself.  Continue reading »

An open letter to Rt Hon Gordon Brown MP, Prime Minister.

Dear Prime Minister,

Joshua Rozenberg interviews the Chairman of the Law Commission in today’s Daily Telegraph. Three family law matters are touched upon: reform of ancillary relief law, pre-nuptial agreements and cohabitation law reform.

I note that there will be no reform of the law in relation to the division of a couple’s assets. The courts will continue to apply the Matrimonial Causes Act 1973 and I’m pleased about that. As a family law solicitor, I approve of the discretion given to the judges: it helps couples across the country who don’t have “big money”. I am very much against the equal division of assets as in other countries, because there are occasions when 50:50 cannot be fair. No two cases are the same.

I also note that the Law Commission will be examining the legal status and enforceability of pre-nuptial agreements. I can’t think why valuable public resources are going to be spent helping the very rich to protect their assets. Continue reading »