29 October 2010

In White and then Miller; McFarlane the House of Lords told us that a fair division of income and capital was the imperative; there was no place for gender discrimination in matrimonial finance; and need, compensation and/or sharing were the three rationales for making an order.

The point of Radmacher is that, post White and Miller; McFarlane, what may be fair in one instance will not necessarily be universally fair. Hence, back in 2006 Richard Todd spoke and wrote of "The Inevitable Triumph of the Ante-Nuptial Contract" [2006] Fam Law 539. As an aside, his success in Radmacher was so complete that Mr Todd can now drop the word "ante". As for whether "contract" or "agreement" is the correct terminology, that can await another blog.

In their speeches articulating how a nuptial agreement can alter what would otherwise be fair, the Justices use the word "fair" and its derivations over 70 times. And yet the question remains, following Radmacher, what does fairness actually mean in the context of matrimonial finance?

For most, as Penny Booth points out in these pages, Radmacher will be of little consequence. Stretching limited resources to meet the competing needs of adults and their children will remain the primary consideration for the majority of divorcing couples. This will be the case whether or not they have entered into a nuptial agreement; the Justices were unanimous in their view that it would be unfair to hold a couple to an agreement that failed to provide for the "real need" of one of them (or indeed the reasonable requirements of their children).

Where Radmacher actually makes a difference is in the context of sharing: of known wealth on the one hand and unforeseen wealth on the other.

As for the former, according to the majority, the existence of an agreement is "capable of altering what is fair". What the Justices suggest by this is that a nuptial agreement can render acceptable what would otherwise have been unfair and/or discriminatory.

As for the later, Radmacher provides two formulations of the test as to whether or not it is fair to hold parties to their agreement. Both tests tend to suggest that unforeseen wealth generation will negate an otherwise "fair" agreement. So much then for social mobility and the entrepreneurial spirit.

In neither instance does it seem to me that Radmacher contributes much to the notion of fairness.

Our matrimonial finance legislation was drafted in a bygone age where gender discrimination and financial dependence by wives on their husbands was the reality. We now live in an age of two tier family justice: one law for the already rich and another for everyone else.

Neither alternative appears just, equitable or even plain old fair.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

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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