Penny Booth on the effect of Radmacher on the average person

20 October 2010

Radmachered...

Penny Booth

This morning the Radmacher case decision was announced. It is essentially a decision about whether prenuptial agreements mean anything under English Law, and whether they can be enforced. They do and they can, basically.

Much will be written on this decision, and would have been whichever way it would have gone - you can be sure of that. There is plenty of scope from the cases over the last decades which have been building to the Radmacher v Granatino situation and the judgment announced.

Whilst important because it will help to clarify individualism in personal partnership, regulation of previous cases and the indications on sharing and pre-partnership arrangements, (as well as a great encouragement for the Law Commission) I cannot help feeling (and do not think I am alone) that the decision will make little immediate or real difference to the ordinary person in the street. The latter are those people who make up a far larger proportion of the marriages and civil partnerships and the divorces and dissolutions that occur in the country than do the rich and famous who may, or will in the future, rush off to a legal adviser prior to getting legally attached. Some people I meet wonder whether it will be only the lawyers (heaven forefend) that will benefit - either to help draw up such agreements, or help argue one's way out of them should they become not quite what was in mind if the partnership goes pear-shaped - as they sometimes do, after all. Colleagues writing for this site will enlighten readers as to the possibilities since it is also clear from the judgment that the answer is not ‘prenuptial agreements are enforceable' - not just that, anyway.

When you love someone, and they profess their love for you, you hope that is the reason they wish to be with you, and enter into a legal personal partnership. If there was a magic potion to use which would ensure the truth of that statement, then you would use it. When you love someone and at least one of you has money and property, you want to ensure the other person wants to be with you for love, not for your money and property. So far - very sensible. You also want to protect your money and property, arguably the desire to protect grows exponentially with your wealth - indeed, you might want to do that anyway. I can understand the motivations behind prenuptial agreements, and, of course, love is forever (not?) but prenuptial agreements will not be the answer when the relationship falters - at best it might reduce time and expense in arguing about money and property in court so long as needs are met. At worst, it could elongate the angst considerably.

Lady Hale, giving a dissenting judgment, has written of such agreements:

"First, the parties are not entirely free to determine all its legal consequences for themselves.They contract into the package which the law of the land lays down. Secondly, their marriage also has legal consequences for other people and for the state. Nowadays there is considerable freedom and flexibility within the marital package but there is an irreducible minimum. This includes a couple's mutual duty to support one another and their children. We have now arrived at a position where the differing roles which either may adopt within the relationship are entitled to equal esteem. The question for us is how far individual couples should be free to re-write that essential feature of the marital relationship as they choose..." at 132

I think this issue is so important that it should be for Parliament, advised by the Law Commission and extensive consultation, to deal with this matter, and the sooner the better.

One will, of course, be able to buy a pre-written, Prenuptial Agreement with a handy ‘delete-the bits-you-don't-want' form, and probably get a Last Testament at an attractive ‘two-for-one' offer on a high street near you very soon. The way to avoid the added costs - financially, personally and socially for everyone else - is to avoid the cheap version so save us all from that. Let's ensure we get it right, consider all the issues and be careful out there.

Penny sets the questions for Family Law journalCPD, a new way to gain CPD points by answering multiple choice questions based on the content of the journal.

She is an Honorary Research Fellow at Liverpool University Centre for the Study of the Child, the Family and the Law. Click here to follow Penny Booth on Twitter.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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