This week, the highly anticipated case of Radmacher v Granatino comes to the Supreme Court for a final showdown. The Times has an excellent summary of the case so far, for those of you who are unfamiliar with it.
We have a very strange situation at the moment where post-nuptial agreements are fully enforceable, but pre-nup’s are not. The only difference is that one is made before the marriage and the other is made during it. The House of Lords (now the Supreme Court) has already said that pre-marital cohabitation can be taken into account when considering the length of a marriage. This already blurred the line between a couple who are dating/engaged and a couple who have actually tied the knot. So it no longer makes any sense to treat an agreement differently just because of the date it was drafted and signed.
We would be joining the USA and most of Europe if the Supreme Court does decide to enforce the pre-nup in this case. It really does beg the question “why should we be any different?”. The answer, I believe, lies in the vast amount of discretion given to judges in dividing marital property under the Matrimonial Causes Act 1973. It would therefore be a big step for the Supreme Court to enforce this pre-nup because it will finally curtail the discretion given to judges in these cases.
N.B. For those of you still on the lookout for that family law pupillage, you really must make it your mission to read the judgment in its entirety when it is published, as no doubt it will be a hot topic at interviews this summer.
