Hayley Trim's Analysis: Conscientious objections: the Dissent of Woman

21 October 2010

Fed up of Radmacher yet? This paragraph of Lady Hale's dissenting judgment re-ignited my interest.

 "...the object of an ante-nuptial agreement is to deny the economically weaker spouse the provision to which she - it is usually although by no means invariably she - would otherwise be entitled... Would any self-respecting young woman sign up to an agreement which ... limited her claim to a pre-determined sum for each year of marriage regardless of the circumstances, as if her wifely services were being bought by the year?...there is a gender dimension to the issue which some may think ill-suited to decision by a court consisting of eight men and one woman."

Lady Hale at paragraph 137

 - Does the Supreme Court's judgment undermine the anti-discriminatory approach and equal esteem now afforded to the roles of both parties to a marriage by the divorce courts after many years of evolving case law?

 - Does the presumption that a prenuptial agreement will be upheld (provided it was entered freely, the implications understood and it is not unfair in the prevailing circumstances) go beyond even the "irreducible minimum" of mutual support required by the status of marriage?

 - Does Radmacher, following on from Imerman, strike a blow against the UK's renowned generosity to wives and its reputation as the divorce capital of the world?

In relation to the latter point, quite probably (at least in the eyes of the media). But for now at least, the economically weaker party is probably still better off in this country than in most others - I doubt the jurisdiction races will stop overnight. In relation to the first two questions, I will put my closet feminist back in its box, stop bemoaning the lack of women (and family judges) on the Supreme Court bench, and try to be objective.

The arguments for and against binding agreements are many: personal autonomy vs. paternalism; certainty vs. sharing; promoting the incentive to marry vs. the incentive to divorce; treating women as equally capable autonomous individuals vs. unfairly restricting their rightful claims. I don't know what the answer is, but I am inclined to the view that individuals should be able to make decisions and agreements about their own future, subject always to a safety net. All 9 judges on the Supreme Court bench took that general view. Where they disagreed was how to phrase the safety net.

It is a subtle distinction:

"the agreement will be upheld unless it is unfair to do so" (the majority), as opposed to "the agreement will be upheld if it is fair to do so"(Lady Hale). Lord Mance thought it would make no practical difference - the overriding test is fairness. If that is true, why then did the majority feel the need to create a presumption which fetters the discretion of the court and which Lady Hale considered to be an impermissible gloss on the statute? Was this presentation to appease those calling for reform and certainty? If so, those people will probably feel it does not go far enough. Without a crystal ball, it is hard to guess what will constitute unfairness (or fairness) years down the line, and there are still plenty of variables to litigate over.

The question of whether the presumption goes beyond Lady Hale's "irreducible minimum" and undermines equality depends on how the courts interpret what is unfair. How unfair does it have to be before an agreement is not upheld? And when it is sufficiently unfair, how will the award be assessed? I wonder what the outcome would have been in Radmacher if there had been no children, and therefore no excuse for Schedule 1 style provision. Would the husband have got absolutely nothing? Or would that have been held to be unfair? What if he had been the wife? If you look at it like that, perhaps Lady Hale is right to say you should not equate married and unmarried parentage. Marriage has to count for something, she says, if only to keep the burden off the state.

Should there be a distinction between ante- and post-nuptial agreements? The Privy Council thought so in MacLeod, and Lady Hale maintains that this is the correct statutory interpretation of ss34-36 MCA 1973. The majority however held that there were no grounds for distinguishing between them; ante- and post-nuptial agreements should all be enforceable and treated the same. Lady Hale argues that affording ante-nuptial agreements contractual status is wrong, and not the red herring the majority seemed to think.  

Indeed, as Lady Hale says, marital agreements are in a mess (partly, she acknowledges, as a result of MacLeod), and in need of comprehensive and rational reform carried out in democratic way (ie via the Law Commission's review and recommendations). The trouble is, assuming the Commission is willing and able to take on this wider brief and the funding is available to it, the results are a long way off. In the meantime practitioners advising their clients what is (un)fair will have to continue to draw on what Sir Nicholas Wall P referred to in his keynote speech to the Family Law Conference on 13 October 2010 as "trial, error and imagination."

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

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