THE Court of Appeal reduced a multi million pound divorce pay out to a former husband to one fifth of the original award, in a decision anticipating full enforceability of pre-nuptial agreements.

Karin Radmacher, from Germany, and Nicolas Granatino, a French national, signed a pre-nuptial agreement in Germany, months before marrying in this country. The agreement provided that in the event of divorce, Granatino would not make claims on Radmacher’s assets accumulated before the marriage.

Lord Justice Thorpe, gave the opening speech in Radmacher v Granatino [2009] EWCA Civ 649 and said while it would be for Parliament to change the law, the courts should use their discretion to give effect to pre-nuptial agreements in certain circumstances.

“In future cases, broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties freely entered? the senior judge said, continuing, “This is not to apply foreign law, nor is it to give effect to a contract foreign to English tradition. It is, in my judgment, a legitimate exercise of the very wide discretion that is conferred on the judges to achieve fairness between the parties to the ancillary relief proceedings.?

Lord Justice Thorpe explained his decision on the basis that contracts entered into by autonomous adults should, subject to proper safeguards, be recognised. “In so far as the rule on such contracts are void survives, it seems to me to be increasingly unrealistic? he said. “It reflect the laws and morals of earlier generations. It does not sufficiently recognise the rights of autonomous adults to govern their future financial relationships by agreement in an age when marriage is not generally regarded as a sacrament and divorce is a statistical commonplace.?

Lord Justice Wilson, with whom the other judges agreed, said the husband’s initial maintenance should be recalibrated to reflect the fact that his claim is only as home maker for the couple’s two daughters rather than for himself. The housing fund to provide a home for the husband and the two girls in England will be held in trust until the younger one, now 7, turns 22.

Antonia Love, Head of Farleys Family law department commented,

“Recent cases such as Crossley v Crossley do recognise the relative binding nature of pre-nuptial agreements in the English Courts, however the ruling in Granatino surely will bring such agreements closer to full recognition. The law is evolving to an acceptance of an adult’s right to enter into voluntary arrangements and in so doing, to give effect to such arrangements. Appeal judges have been consistently referring to full recognition of pre nuptial agreements being a matter for Parliament as they have pushed the boundaries of current legislation as far as they consider possible within their discretion.?

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