Judges back prenups for Britain: Traditional marriage laws are swept aside in landmark decision by Supreme Court

The Irish Times indicated yesterday that the Family Law Bill will contain proposals for the recognition of prenuptial agreements in Irish law.

The heads of the Bill are currently being prepared, but there is no date for their publication.

This week the highly publicised Supreme Court decision in London ruled that prenuptial agreements should have “decisive weight” in English divorce cases.  This ruling will have persuasive, but not decisive, weight in Irish courts.

The Supreme Court decided to uphold a signed pre-nuptial agreement by Katrin Radmacher which was challenged by her former husband Nicolas Granatino. She is a German paper industry heiress who is worth more than 100 million pounds and this was one case that was viewed as the pivotal test to see if such agreements and its likes can be enforced in English law.

This recent decision by the court will help the wealthy individuals to guard their money by signing pre-nuptial agreements which will be given “decisive importance” by judges in many divorce cases involving huge finances.

Prenuptial agreements are typically entered into when one party has considerable assets which he or she wishes to preserve in the event of a marriage break-up. Under both UK and Irish family law the combined assets of the couple are divided, though not necessarily on a 50/50 basis, when a marriage breaks down.
The UK supreme court case concerned a wealthy German heiress, Katrin Radmacher, possessor of an estimated fortune of £100 million (€112 million), and her French banker husband Nicolas Granatino, who signed a prenuptial agreement when they married in 1998.

The couple had two children. In the agreement he agreed to make no claims on her fortune if the marriage failed, which it did. They separated in 2006 and divorced in Britain. The settlement awarded him £1 million and the use of a home worth £2.5 million until his youngest daughter is 22.

Mr Granatino, then a mature student at Oxford University, challenged the agreement, arguing it had no status in English law. Pre-nuptial agreements are enforceable in US and European law, but have not been enforceable in English law, though they can have influence on settlements.
This week Lord Phillips, president of the UK supreme court, delivered its judgment, stating that the agreement should have “decisive force”. Lady Hale, the only woman sitting on the court, dissented, stating that a prenuptial agreement should be considered as only one of a number of factors which should be taken into account in a divorce settlement.
Lord Phillips also stated that courts would still have the discretion to waive prenuptial agreements if they are not fair or do not provide for the needs of the children of a marriage.
This case differs from most other British cases in that both parties were from other European countries where such agreements are routine, and also in that the wealthy party was the woman.