The Supreme Court handed down judgment in the case of Radmacher v Granatino [2010] UKSC 42 on the 20th October 2010. The case concerned the enforceability of ante-nuptial agreements.

The parties, the appellant, a French national and the respondent, a German national, had entered into an ante-nuptial agreement. This was subject to German law and provided that no benefit of property would be derived from the other during the marriage or upon its termination.

The appellant at the time of the agreement had been earning £120,000 a year in a career in banking. He later left banking to pursue research studies at Oxford with the aim of obtaining a D Phil in biotechnology. The parties married in 1998 and two children of the marriage were born in 1999 and 2002. The parties separated in 2006, and were divorced in 2007.

The appellant applied to the High Court for financial relief. This was granted, providing an income for life and funds to purchase a home in London where his children could visit. Referring to safeguards set out in a Home Office consultation document entitled “Supporting Families” published in 1998, the High Court judge found the agreement fell short of several of the safeguards, but the amount of the award had to reflect the fact that the appellant had signed the agreement. On appeal, the Court of Appeal reversed the High Court ruling, finding that the agreement should have been given decisive weight and that the award should reflect only the appellant’s role as a father.

Before the Supreme Court, three questions were put forward for consideration. The court determined in each case the issue of principle raised before consideration of the question in the context of the case.

Firstly, whether there were circumstances surrounding the making of the agreement which should detract from the weight which should be accorded it? The court found that those agreements should be voluntarily entered into with full information. Applying this to the facts of the case, the court highlighted that the appellant had not taken advantage of the notary’s wish to postpone the execution of the agreement to seek independent advice and had not sought advice in the period between signing the agreement and the marriage. Determining this, the court held that no such circumstances existed.

The second issue concerned whether the foreign elements of the agreement should increase its weight. Finding that the fact the agreement was binding in German law demonstrated the intention that an agreement would be effective, it was highlighted that whether it was a contract in another jurisdiction was not relevant to the weight accorded to it. The court held that the agreement would be governed exclusively by English law and following judgment in the present case agreements governed by English law would also be effective.

Thirdly, whether the circumstances at the time the High Court made the order made the departure fair and justifiable? Referring to the cases of White v White [2001] 1 AC 596 and Miller v Miller, McFarlane v McFarlane [2006] UKHL 24 which establish principles of fairness, the court outlined a proposition:

"The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."

Guiding circumstances include but were not limited to the need to avoid prejudice to any reasonable requirements of children following s 25 of the Matrimonial Causes Act 1973, considerations of autonomy, non matrimonial property and provision for the future. Holding that the Court of Appeal was correct in its finding, the court highlighted that the appellant was able to earn and would also indirectly benefit from provision made for the children of the marriage. No compensation would be made available as the decision to depart from a career in banking had been one of preference rather than for the needs of the family. Fairness would require the agreement be upheld, and the appellant would not be entitled to receive a portion of the wealth received by the respondent from her family.

In a separate judgment, Lord Mance agreed with the conclusions of the majority but determined to express no view on the binding nature of ante-nuptial agreements.

Dissenting, Lady Hale agreed with the majority that approach of the Privy Council in the case of MacLeod v MacLeod [2008] UKPC 64 was too rigid but disagreed that there existed, in policy terms, no relevant differences between ante and post nuptial agreements. Further, arguing that the approach of the Court of Appeal was inconsistent with the status of marriage in the United Kingdom, the dissenting judge held that provision should be made for future needs after a child has grown up and therefore the appellant should be granted a home for life.

Dismissing the appeal, the majority found no error in the Court of Appeal’s judgment and that the appellant should be held to the terms of the ante-nuptial agreement.