1 FAMILY LAW

Introduction

The statement by Thorpe clearly states his opinion on prenuptial agreements[1]. He deems them necessary so as the individuals could avoid the stress involved in judicial cases on marriage assets. He conceptualizes prenuptial agreements as a great way to avoid unnecessary anxiety, stress and expenses of judicial proceedings[2].

I totally agree with his concepts on and base my essay on the support of his notion. The uniqueness of this case is that there was a prenuptial agreement and yet there still was a court case. This was because the prenuptial agreement was signed in another country and it legitimacy was being contested. Not only have that different countries had different rules on these contracts.

Marriage and civil partnerships require a prenuptial agreement to justify the mind set the couple were in the time of commitment. In case of separation, the prenuptial agreements re not so weighty in a court of law. It is in fact a lee way that assists the judges provide a ruling based on the evidence of an agreement at marriage[3]. This is physical evidence of what inspired during the time they agreed to get married. The agreement is aimed to protect family assets and ensure a proper future for the children in case separation. The court makes the final decision guided by the prenuptial agreement and the current issues leading to the separation. It will also consider the welfare of both parties and the children in its ruling. The prenuptial agreement also assists in pre-empting matters prior to separation. The disparity of wealth may be preserved if divorce is inevitable. In several states in the United States the agreement is valid; this concept is creeping in Europe and, according to me, should be adopted totally[4]. France and Germany are among European countries that recognize and are frequently utilized.

In the case the couple came from states that recognized the prenuptial agreement and were judged in a different country. This was England where the attitude their courts towards pre-nuptial agreements were varied. They did not consider the prenuptial agreements[5]. This was all to change with the direction of the ruling by Thorpe. In the case of Radmacher v Granatino [2009], the court of appeal used pre-nuptial agreements between the rich German lady and Frenchman. The judge appealed for the future use of such documents in dividing as assets. The direction showed that not all pre-marriage agreements will withstand the legal system. This is because there is no legislative support to that issue. They would rather be applied to specific situations singled out by the judges. The circumstances of the judgement, otherwise, will influence the weight the document implies in the court of law[6].

Initially, in the courts, the pre-nuptial agreements were upheld and a ruling was made in favour of Mr. Granatino to be awarded with 5.6 million pounds, but later in the court of appeal, the ruling was overturned with a new figure of 1 million pounds being awarded to him. His claim that he did not have legal representation during the agreement was considered. The agreement used as there was no provision for their children or full financial disclosure. In the new ruling, the pre-nuptial agreement was taken into consideration in the judgment, but was not upheld. The judge fronted for the continuous use of the agreement in future judgment[7].

The Case and Supporting Case Laws to my Agreements with the Concepts

The laws of recent times do not provide for certainty and clarity in event of marriage dispute and eventual breaking up. Divorces invoke uncertain outcome to the individual financially. The pre-nuptial agreement is signed by both parties, but during divorce both divorcees find that the clause they agreed to be unrealistic. They, therefore, do not accept the agreement and do not want it to be upheld. The challenges are frequent in English courts because the English laws are inconsistence and undefined towards the pre-nuptial agreements. Historically, the laws have been inconsistent; this makes the divorcees engage in cash consuming and emotionally draining court cases. In the event of a divorce, they are no statutory laws on the approach of the judicial system on the pre-nuptial agreement[8].

The divorce, battles in most cases, is economically due to the cost of legal fees. The Supreme Court ordered that the award granted to Mr. Granatino be reduced to a million pounds and a house in London, while their children were young, from 5.6 million pounds. The legal fees owed by Mr. Granatino amounted to about a million pounds if not more. Therefore, Mr. Granatino got nothing from the legal proceedings except fro the house. This shows that it is very expensive to incur legal proceedings.

It is proper for the people to be assured that pre-nuptial agreement issue was to be enforced, they would reposition there attitude towards it. This would make them adhere more to the clauses of the agreement instead of opting for the expensive litigation process. The litigation process is costly, not only for the families, but to the family justice system and other services involved. The law should be able to agree with the fact that two consenting adults came up with the pre-nuptial agreement under their total knowledge. This is in order for them to avoid unnecessary uncertainty in case of their break up. It is a requirement at times to assist the weaker party of the marriage, but with an agreement imposed it shows that both of the parties knew of the consequences of their actions in divorce[9].

The fact that the pre-nuptial agreements will encourage people to marry is correct. This is because they will be sure their entering a marriage which does not entail financial clauses. The marriage will be typically out of love. The couple should be able to have a choice and the decision should be regarded as a legally binding agreement. Enforceability of the agreements in law is, therefore, vital[10].

The Court of Appeal ruling in Radmacher v Granatino (2009) EWCA Civ 649 made a decision that supports my agreement with the judge. He made clear the directions for future rulings on the matter of pre-nuptial agreements in court rulings in the United Kingdom. The future judicial system will treat marital disputes and relationship disagreement with a different view. They will consider the agreements to some level in their judgments[11].

The parliament has a daunting task of trying to put the pre-nuptial agreement into law. They must intervene as the case has created a path that future judgment will be based upon. If the legislation is not in place, there will be conflicts between systems of legislation and justice. This case, as few others I will mention later, will impact the future in creating social policy and developing law in this area[12].

The English domestic law corresponds with many of the worlds major jurisdictions in not recognizing the pre-nuptial agreements. This is in reference to the laws in European countries. This makes individuals seeking divorce forum shop. This means that they will try to secure a favorable jurisdiction[13].

Many Court of Appeal ancillary relief judgements compound of a large amount of money and little facts. This makes pre-nuptial agreements key in these decisions. For the need of not repeating the same judgements, rulings are made to guide future judgements in the area. The remarks by the preceding judge are made to guide locals on the way forward. Therefore, the judgement and remarks by Thorpe aim to advice the locals on the pre-nuptial picture in the recent judicial picture. This is despite the fact that the case involved two internationals. In the Crossley v Crossley [2007] case[14], the law is seen to support the pre-nuptial agreements as it was termed as being of paramount importance and magnetic in nature. In Crossley, the judge missed making a comprehensive judgement in merits. The wife was required to Show Cause why the pre-nuptial agreement should not be used in the final judgement.

The courts have obtained power from parliament in Part II, 1973 Act to adjust post marital financial conflict between couples. The power is exercised with consideration of all evidence. This would imply that the courts could use pre-nuptial agreements in the judgement of such cases as evidence. The court order is not specific to the agreement, but it is a court order[15]. This is because the judgement should satisfy the court in its fairness and equality. Children gravely affect the direction of prenuptial agreements and the judgement reached by the court. The Supreme Court Judicature Act, 1925, s.190 portrays discretion of the exercising of jurisdiction including the agreement.

The belief that the court will someday adopt the agreements to its fullest is heightened. The court might take into account some of the conduct of the agreement considering the circumstances by which it was reached. This is seen in the cases like Brockwell v Brockwell [1975] and Edgar v Edgar [1981][16] Fam Law 46 that portrays an agreement and the influence it had on the case and judgement. The decision of the court on whether it should exercise discretion under s 25 or not lies with the need to make orders targeting financial provision in s 23 and 24. The court has full advice on the significance and influence the agreement has between the parties Edgar v Edgar (1981) 2 FLR 19 at p.25.

Development of a law that factors in prenuptial agreement is very inconsistent and slow in England and Wales. The forum shopping cases shows the courts reaction towards the need of upholding pre-nuptial agreements. The courts attitude towards the agreement is substantive under s.25 and MCA 1973 in discretion. The rulings applied are inconsistent to the s.25 principles in granting of monetary relief in divorce. The significance is, therefore, dependent on the judge’s comments towards the agreement. The most common cases directing the use of pre-nuptial agreements are K v K[17] and M v M[18]. The Crossley case and S v S (Ancillary Relief) [2009] 1 FLR 254) may portray the way forward[19][20].

MacLeod has provided authoritative guidance showed the Court’s powers to alter unjust outcome upholding valid pre-nuptial agreements. This is with appropriate provision for the children involved in the divorce preceding. It will be more effective after a short marriage than a long one, and where there are no children. Following from NG v KR it is clear that the Green Paper Supporting Families is a good starting point[21]. In MacLeod v MacLeod, the highest courts assumed an agreement after marriage to be legally binding. The courts acknowledge the importance of policies in people made agreements[22].

The case put forward guidelines in which the court should consider in refereeing to pre-nuptial agreements. Until legislation is created by the parliament, the guidelines put across in the white paper of 1998 must be followed[23]. There should be full disclosure by both parties[24]. The agreement should have ample reflection time. This is at least 28 days before marriage. Each party to the agreement must have independent advisory legal counsel[25]. The ideal situation will have no children after marriage. If children are involved, then the courts will intervene to see that the rights of the children are considered[26].

Conclusion

It is totally visible, that there is a certain inclination by the senior members of the judiciary to give greater weight on pre-nuptial agreements. The inclination is justified, according to me, and should be a part of the UK laws. Adults take up the decision of creating a pre-nuptial agreement as they are well informed and in control of their lives. They regulate their finances for the future under qualified advisory and hence there decision should account for something.

Love or stress is sometimes blamed for blinding one of the signatories to a pre-nuptial agreement. There is, voluntary or involuntary, exploitation witnessed to this weaknesses portrayed by part of the couple. The financial strong are legally stronger and therefore influence the agreement greater. If there is the vulnerability experienced, then the party would be blind to some factors during the signing. Individual advisor are therefore encouraged for parties going into such agreements. Without individual and personal advisor, judges are likely to see the vulnerable as being oppressed and dismiss the agreement as Baron J.

It is; therefore, clear that at some point in the near future properly prepared pre-nuptial agreements will be used in courts of law after change of legislation. Those prepared in marriage, on the other hand, will be increasingly considered in a court of law. It is vital to comprehend that all factors leading to an ancillary relief case under s.25 will be examined. This includes the conditions in which the agreement was accented. In case of unfairness or exclusion children, the court has the right to make judgement. For effective pre-nuptial agreement to be accepted in the courts of law, the guidelines put across in the 1998 white paper should be followed. The judges are seen to be unanimous in the call for new legislation to support the pre-nuptial and their use in decisions of the courts.

References

Camm v Camm (1983) 4 FLR 577.

Crossley v Crossley [2007] EWCA Civ 1491; [2008] 1 FLR 1467.

De Lasala v de Lasala [1980] AC 5462.

Edgar v Edgar [1980] 1 WLR 1410.

J v V [2004] 1 FLR 1042.

K v K (Ancillary Relief: Prenuptial Agreement) [2003] 1 FLR 120.

M v M (Prenuptial Agreement) [2002] 1 FLR 654: Connell J.

MacLeod v MacLeod [2008] UKPC 64 [2009] 1 All ER 851.

N v N (Jurisdiction) [1999] 2 FLR 745: Wall J.

NG v KR (Pre-nuptial contract) [2008] EWHC 1532 (FAM) [2009] 1 FCR 35. T Baron J.

NA v MA [2007] 1 FLR 1760, per Baron J at para. 90.

S v S (Ancillary Relief) [2009] 1 FLR 254).

Aylward, R. (2006). Pre-nuptial agreements. Thomson Round Hall. Print.

Batla, M. L., and Shakuntla B. (1978). Maintenance, marriage, divorce: laws and women, based on latest amendments, up-to-date case law, selected specimen of petitions and statutes. Universal. Print.
Bromley, P. M. (1992). Family law. Butterworth’s. Print.

Francis, N. (2008). Pre-nuptial and cohabitation agreements. Jordan’s. Print.

Francis, N. (2011). Pre-nuptial and Post-nuptial Agreements in the UK (England and Wales). Family Law. Print.

Jasper, Margaret C., (2008). Top of FormBottom of FormTop of FormMarriage and divorce. Oceana. Print.

Karabatos, E. (2001). Drafting matrimonial agreements, 2001. Law Institute. Print.

Salter, D. A. (2011). International pre-nuptial and post-nuptial agreements. Family Law. Print.
Shúilleabháin, M. (2010). Cross-border divorce law: Brussels II bis. Oxford University Press. Print.

The Marriage Contract: Radmacher v Granatino: Edinburgh University Press
Wood, H. (2009). Cohabitation: law, practice and precedents. Family Law. Print.

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[1] The Marriage Contract: Radmacher v Granatino: Edinburgh University Press
[2] Francis, N. (2011). Pre-nuptial and Post-nuptial Agreements in the UK (England and Wales). Family Law. Print.
[3] Jasper, Margaret C., (2008). Top of FormBottom of FormTop of FormMarriage and divorce. Oceana. Print.
[4] Francis, N. (2008). Pre-nuptial and cohabitation agreements. Jordan’s. Print.
[5] The Marriage Contract: Radmacher v Granatino: Edinburgh University Press
[6] Jasper, Margaret C., (2008). Top of FormBottom of FormTop of FormMarriage and divorce. Oceana. Print.
[7] The Marriage Contract: Radmacher v Granatino: Edinburgh University Press
[8] Francis, N. (2011). Pre-nuptial and Post-nuptial Agreements in the UK (England and Wales). Family Law. Print.
[9] Karabatos, E. (2001). Drafting matrimonial agreements, 2001. Law Institute. Print.
[10] Shúilleabháin, M. (2010). Cross-border divorce law: Brussels II bis. Oxford University Press. Print.
[11] Salter, D. A. (2011). International pre-nuptial and post-nuptial agreements. Family Law. Print.
[12] Francis, N. (2008). Pre-nuptial and cohabitation agreements. Jordan’s. Print.
[13] Aylward, R. (2006). Pre-nuptial agreements. Thomson Round Hall. Print.
[14] Crossley v Crossley [2007] EWCA Civ 1491; [2008] 1 FLR 1467;
[15] De Lasala v de Lasala [1980] AC 5462

[16] Edgar v Edgar [1980] 1 WLR 1410
[17] K v K (Ancillary Relief: Prenuptial Agreement) [2003] 1 FLR 120
[18] M v M (Prenuptial Agreement) [2002] 1 FLR 654: Connell J
[19] Crossley v Crossley [2007] EWCA Civ 1491; [2008] 1 FLR 1467;
[20] S v S (Ancillary Relief) [2009] 1 FLR 254)
[21] NG v KR (Pre-nuptial contract) [2008] EWHC 1532 (FAM) [2009] 1 FCR 35. T Baron J
[22] MacLeod v MacLeod [2008] UKPC 64 [2009] 1 All ER 851
[23] NA v MA [2007] 1 FLR 1760, per Baron J at para. 90
[24] K v K (Ancillary Relief: Prenuptial Agreement) [2003] 1 FLR 120
[25] Camm v Camm (1983) 4 FLR 577;
[26] J v V [2004] 1 FLR 1042