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.

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From the comment pages of The Independent, 03/07/09.

No longer the capital of divorce

By Marilyn Stowe

Yesterday, I thought about placing a bet on the outcome of the Radmacher v Granatino case. I would have backed the outside chance that the Court of Appeal would uphold the pre-nuptial agreement, even with all the odds stacked against me.

English law doesn’t automatically recognise such agreements. It is about needs, obligations and distributing assets and income fairly. Yet, I thought, times have changed. We are living in a European country. English law gives the courts discretion to reinterpret the law. Would the same judges who once pooh-poohed pre-nuptial agreements dare to change their minds? They did. 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.

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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 »

Proposed legal rights for cohabitants have one reader reaching for the panic button.

As regular readers are aware, I hold strong views about the Government’s reluctance to introduce new legislation for cohabiting couples. I believe that cohabitants should be allowed to put their relationship before the court in the same way that divorcing couples can. 

Not everyone agrees with me. One reader has contacted me to argue that the law should not be changed. I think he raises some interesting and pertinent points about cohabitation and remarriage, and I would like to explore his case in more detail.

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