Archive for November, 2010
The recent Supreme Court decision in the case of Radmacher -v- Granatino has made a significant change to the way divorce courts will view pre- or post-nuptial agreements. Suzy Hamshaw, a family lawyer at Charles Lucas & Marshall explains the implications of the court’s decision.
It is now much more likely that courts in England and Wales will uphold the terms of a pre-nuptial agreement unless it would be manifestly unfair. Such agreements are still not legally binding on the divorce court but they will be a much more significant factor that the court will have to take into account.
Miss Radmacher was encouraged by her father to sign a pre-nuptial agreement before she married Mr Granatino. In effect, the agreement stated quite simply that if the couple divorced, neither would make any claim against the other’s assets.
The couple had two children and during the course of the marriage, Mr Granatino decided to give up his career in the City to study for a PhD at Oxford University. This meant that his income was reduced from over £300,000 a year to some £30,000. Meanwhile, his wife’s fortune had been increased by the settlement of some £100 million pounds from her family fortune. No doubt this cushioned somewhat the impact on the family of Mr Granatino’s drop in income.
When they divorced, the first court in London held that the pre-nuptial agreement was not valid for several reasons and ordered, amongst other things, that Miss Radmacher should pay Mr Granatino a lump sum of £5 million. The court said that circumstances had changed since the agreement had been signed and these circumstances were more pertinent to the settlement than the fact that an agreement had been signed.
Miss Radmacher appealed against this judgment and the Court of Appeal reduced the lump sum to £1 million, saying that the terms of the pre-nuptial agreement should stand. Mr Granatino then appealed to the Supreme Court, which found against him and upheld the payment of the lesser sum.
The impact of this judgment on Family Law is significant. Although the court has not specifically changed the law – that has to be done by Act of Parliament – it has set a precedent that all courts will now follow. This means that pre-nuptial agreements will be taken into account by a court when couples divorce. The courts will only change the terms of the agreement if it would be unfair not to do so, taking any changes of circumstances into account.
Interestingly, in this case it is the wife who has the greater fortune to protect and it was the husband who went into the marriage in a weaker financial position.
Among the many articles in the press about this case, I was particularly struck by the comment that an effective pre-nuptial agreement would cost between £5,000 and £7,000 in London. That may be so for couples having fortunes of £100 million but for the vast majority of people the cost is far less and could be a worthwhile investment.
For further information contact Suzy Hamshaw on 01635 521212 or email@example.com
Divorce rates may still be highest among couples in their late 20s … but it is often when children start school that the real cracks begin to show.
Latest figures show that for the fourth consecutive year, both men and women in their late 20s had the highest divorce rates in England and Wales. Some experts believe this is partly explained by couples starting a family and the dramatic change in lifestyle a young baby can bring.
However, Lyn Ellins, a family law specialist with Swindon law firm, Charles Lucas & Marshall says that from her experience of advising divorcing couples over the last 30 years, divorce is far more likely to happen when children start school and the couple’s expectations of marriage start to diverge.
“There is often resentment on the part of the husband if the wife shows no real interest in going back to work,” says Lyn. “She has had five or six years to establish a new lifestyle, centred around the home, friends and children - which to the husband, looks very cosy and enjoyable.
“The kids start school and financial reality kicks in. The husband, who is invariably the income-earner, becomes resentful that he is the one with all the financial responsibility. It is also quite difficult and daunting for women to find a job after many years out of the workplace and this also causes tension within the marriage.”
Lyn Ellins believes this is a major reason for divorce in Swindon because more women have the option of taking time out of work to raise young children because their husbands are on high incomes.
“Children starting school can trigger a real crisis point because women have more opportunities to do new things – and at the same time, a resentful husband is more inclined to start looking at nice, ‘shiny’ workmates in a new way.”
For further information please contact Lyn Ellins on 01635 521212 or firstname.lastname@example.org.