With the Supreme Court decision in the major premarital agreement case of Radmacher expected within the next month, what should practitioners be looking out for, especially in respect of international elements? There were at least nine judges sitting on the case, most without any real family law background whatsoever. The judgements are likely to contain quite contradictory elements with many facets of English law and traditions coming together as a consequence of the different backgrounds of the judges. This might be highly healthy and invigorating for family law. It might though contain elements which have been so far foreign even alien to family law traditions.
At present under English law, a jurisdiction clause in a premarital or marital agreement carries substantially more weight than the terms of the agreement itself. In a forum dispute in deciding which is the more appropriate country in which proceedings should take place the English courts give very considerable weight to the fact that the parties have chosen a particular forum within a written agreement, especially if they had the opportunity of legal advice and disclosure. Where they have chosen not so much a geographical location but the law of a country to be applied, the English courts have often taken this as an agreement for the proceedings to be in that country. How will the Supreme Court deal with issues of jurisdiction choice in (pre-) marital agreements?
One of the major divisions between much of continental Europe and the United Kingdom and a couple of other European countries is the issue of applicable law. Many continental European countries will apply not necessarily their own local law but the law with which the couple have a particular connection. In many circumstances provided there is some connection, parties can choose that a particularly country's law should be applied on a marital breakdown. This is completely contrary to the perception in England and Wales, and other parts of the United Kingdom, which maintains the historic tradition that fairness can best be found in the application of the local law, lex fori, deriving from local principles, culture and mores. So far the United Kingdom has resisted relentless moves from the EU to impose applicable law. However what will the Supreme Court decide in respect of choice by couples in a marital agreement that wherever they divorce, they want a particular choice of law? Might this be acceptable to some judges of the Supreme Court who come from a more liberal commercial law background where applicable law has a place?
Under what circumstances should a party who has entered into a pre-marital agreement, probably in contemplation that it would be binding on any divorce, then be able to obtain a different outcome? This is one of the biggest dilemmas facing many countries, namely balancing certainty of the contractual outcome against the opportunity of fairness intervention in highly unexpected new circumstances, especially if it affects children? This is one of the biggest issues facing by the Law Commission as they put forward their own proposals early next year for law reform. Other countries have different ways of dealing with it. The proposals from the Supreme Court will be of much interest.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on email@example.com.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.