Development in the Area of Financial Relief on Divorce - Essay Example

?THE CASE OF RADMACHER V GRANATINO UKSC 42 WAS A WELCOME DEVELOPMENT IN THE AREA OF FINANCIAL RELIEF ON DIVORCE. DISCUSS Course Date Word count: 2522 The case of Radmacher v Granatino [2010] UKSC 42 was a welcome development in the area of financial relief on divorce. –Discuss Introduction Prior to the discussion, it is relevant to have an insight as pertains to the main issues in the topic of discussion. To begin with, divorce is passed by a court and nullifies the marriage between two married people. Following divorce, the court can provide ancillary relief to either of the parties and depending on the circumstances of divorce and support required by either party. However, there are agreements that are made prior to the marriage (pre-nuptial) or after the marriage (post-nuptial) and their weights are considered while making these rulings. One such ruling is the case in the title where the ancillary proceedings involved an existing pre-nuptial agreement1. The case of Radmacher v. Granatino2 brought a decisive ruling by the court of appeal as pertains to pre-nuptial agreements. The court ruled that if couples divorced and had a pre-nuptial contract, none of the two parties were viable to make financial claims in opposition to the partner if form of proceedings. As pertains to the facts of this court, the contract was binding in August 1998 in German by Mr. Granatino a French man and Ms Radmacher a German. They both lived in London where their children were born in September 1999 and in May 2002 and they later separated in August 2006. Though the law was made in German, the proceedings following divorce were held in English court. It is of paramount importance to note that in English judicial system, pre-nuptial contracts are considered as opponents of public opinion and hence invalid and unenforceable. The courts in England and the United States have since proved it difficult for divorced couples to enforce proceedings as pertains to pre-nuptial contracts. It has been expensive venture and stressful one hence necessitating the need for affirmative action3. Affirmative action as pertains to pre-nuptial contracts was conducted by Baron J in 2008 when he heard the claim for supplementary relief by Mr. Granatino. Baron J however demoted the relevance of the contract on the grounds that there were no negotiations, Ms Radmacher did not disclose her assets, and Mr. Granatino was not given any legal advice. Moreover she affirmed that it was unfair to deprive Mr. Granatino the claim especially since he was in need of the additional support and also that the two children bound them in the holy matrimony of marriage. However, this case was taken to the supreme and its discretion with reference to4 reviewed. The court of Appeal with reference to the case of Macleod v. Macleod5 held that the husband should be rendered as accountable to the agreement since there were no factors emulating the contrary. This served as a ruling in similar cases pertaining to monetary agreements among divorced couples who had made an agreement prior to their marriage. This case served as a baseline to assess the weight upon which the agreement should be given in deciding the validity of the agreement. This agreement made prior to marriage is defined as pre-nuptial or ante-nuptial agreement and will be referred to throughout this discussion. With this genesis of the facts and ruling to the case, a discussion will be presented outlining the financial freedom following divorce that has resulted from the ruling in the case of Radmacher v. Granatino6. Discussion In Favor Of Financial Freedom Following Divorce Lack of undue influence is a relevant factor that is considered in cases pertaining pre-nuptial agreements and aids in financial freedom of the plaintiff to litigation. With reference to the case of Mr. Granatino, the court took into consideration the willingness of the parties to enter into a contract prior to their being married to each other. This is used to evaluate in the contract is legally binding hence the determinant of financial freedom between the involved parties. In the case, it was proved that Mr. Granatino was not compelled to enter into an agreement with Ms Radmacher and he did so knowing the repercussions of his actions. This therefore served in favor of the plaintiff and hence she was able to garner financial freedom following divorce. This therefore means that incase of litigation, the plaintiff will only acquire financial freedom if there is sufficient evidence to prove that the defendant was not compelled to sign the agreement but did so about of his own free will. Couples who consent to pre-nuptial agreements are able to enjoy financial freedom following divorce as the contract between them is legally binding to both parties7. Secondly, financial freedom following divorce is justifiable where weight is given as pertain to the foreign legality of the contract. Mr. Granatino and Ms Radmacher entered into a contract in German where such contracts were legally enforced by the German government. However, they divorced in English and Mr. Granatino used this as a loophole to gain financial advantage since he knew that pre-nuptial agreements are not enforceable in English. However, the agreement became enforced while they were still in German hence other countries were bound to abide to the agreement in the contract. This means that Ms Radmacher would get her financial freedom following divorce in the United States even though that is not were the contract was enforced. What mattered is that by the time they moved to English, the contract was already valid and hence legally binding to both parties. This means that couples who get into pre-nuptial agreements regardless of the country of ancillary proceedings are legally bound to the enforcement of the contract in the country it was made. The clause of international binding of the contract hence enables financial freedom of the plaintiff following divorce8. Consequently, to acquire financial freedom following divorce, the court will evaluate if it is viable at the time to terminate that agreement between the two parties. The court would not rule contrary to the agreement or against the provisions of one party hence giving one party more advantage while sidelining the other party. Mr. Granatino was filling ancillary proceedings and wanted additional support form Ms Radmacher to take care of the children. However, this would not be allowed by the court since Mr. Granatino knew of his financial status prior to the contract and acknowledged to the pre-nuptial contract. It is documented that he was a banker and me Radmacher was from an influential family and hence had wealth. Consequently, Mr. Granatino quit banking to become a researcher at Oxford on his own will and hence should not make Ms Radmacher liable to compensate him for the increased needs to take care of the children. It was his duty and he knew the agreements in the contract. This gave weight to the adherence to the pre-nuptial agreement and hence giving financial freedom to Ms Radmacher9. Moreover, financial freedom following divorce is granting with reference to actions of either party following the formation of the contract. Following their marriage, Ms Radmacher was left a large proportion of her family estate and this was not included in the pre-nuptial agreement since it occurred prior to the agreement. Mr. Granatino filled proceedings in bid to purchase a house in London for their two children to visit and since he did not have a stable job. This was on the assertion that Ms Radmacher had a large estate in her name and she was accountable to help him take care of the children. This was envisioned as a self-centered motive by Mr. Granatino since he was not compelled by family reasons to leave his job. He independently decided to pursue research instead of the lucrative business career. Though Ms Radmacher has the responsibility of supporting their younger daughter till she is 22 years old, it is not viable from Mr. Granatino to use this as a means of getting money not included in the pre-nuptial agreement. This is evidenced in the case of Cordle v Cordle10 where it was ruled that the idea of sharing by the divorced parties did not apply in this case. This is since it was included in making the pre-nuptial contract. This therefore aids in securing financial freedom for couples following divorce and where a pre-nuptial agreement exists11. Discussion against Financial Freedom Following Divorce It is important to note that the decision, in which the financial freedom following divorce has been heavily relied on, did not go uncontested. As earlier foretold, the Supreme Court had nine Lords and the decision was based on a matter of majority rule 8:1. However, it is important to evaluate Lord Hale’s discrepancy in the ruling as pertains to financial freedom following divorce and especially where a pre-nuptial agreement exists. The first reason she gave as to why she was against the financial freedom following divorce and did not give weight to the pre-nuptial agreement was on the basis of sanctity of marriage. Marriage was meant to bring people together and according to the public opinion divorce is not encouraged especially since the children suffer in the whole process. Secondly, upon marriage Ms Radmacher owed a duty of care to not only her husband Mr. Granatino but also to her children. Just because she divorced Mr. Granatino, this did not entitle her to quit supporting her children. Her marriage of 8 years bound her to support Mr. Granatino and her two children hence challenged financial freedom following divorce. Other cases in which pre-nuptial agreements were regarded as null and void were in the case of Cocksedge v. Cocksadge12; McCartney v Mills McCartney13 and also in the case of H v. W.14 Moreover, challenge against financial freedom following divorce in existence of pre-nuptial agreement was cited by Lord Hale as pertains to lack of gender parity. Out of the nine Lords in the Supreme Court, she was the only woman and was of the opinion that the pre-nuptial agreement was meant to oppress the weaker gender in this case the female gender. This made the woman more disadvantaged compared to her male counterpart as evidenced in the case of Miller v Miller15This is since men are more advantages and get more lucrative jobs compared to women especially since women take time caring for their children and are mostly out of work. According to Lord Hale, the pre-nuptial agreement is a scam not to repay the woman for the sacrifices she has made for her spouse during their marriage years. Consequently, the pre-nuptial agreement dissolves the marriage from the time it is made since was is generated during the marriage years is not accounted for. This looses that viability of marriage and thus is better described as cohabiting instead of marriage since not even the wealth generated or children born during the marriage years are put into consideration16. However, the challenge in this initiative was that the defendant belonged to the male gender hence could not be described as oppressed by the female gender. Lord Hale asserted that the children were oppressed by the pre-nuptial agreement imposed on them and they were the victims in the whole process. This further emulates why pre-nuptial agreement should not be a viable document that provides financial freedom to the divorced individuals17. Subsequently, in the case of Hyman v. Hyman the ruling made did not abide to the pre-nuptial agreement and hence did not grant financial freedom to the husband following divorce. The two couples made a pre-nuptial agreement where the husband was to pay the wife 20 pounds weekly throughout the life of his wife. In return, the wife would not file ancillary proceeding following their divorce. However, the husband committed adultery and the wife filled for a divorce on the grounds of adultery which was successful. She thereafter went ahead and filled for additional ancillary relief, a move which her husband opposed on the subject of their binding pre-nuptial agreement. This did not hamper the court from declaring the pre-nuptial agreement null and void since the husband relied on it to commit adultery. Consequently, there is no way the wife (divorced) would have relied on his word having committed adultery and hence filled the litigation. The court denied financial freedom to the husband and awarded the wife (divorced) ancillary relief. These are some of the provisions that serve as justifiable bias of denying financial freedom to divorced parties18. Additionally, the use of pre-nuptial agreements has been challenged since it has been found as an avenue that aids in propagating divorce among married people. When individuals realize that they can make contracts, get into marriage, and finally leave this commercializes the marriage institution. People will use marriage as an avenue where they can use each other to generate wealth for their own benefit. This has been cited as the insurgence of conflict in homes since no one feels accountable to the other. This leads to lack of respect, prejudice, confusion and an issue that finally culminates to divorce. These agreements have been cited as a reason for increase in divorce rates in countries where they are enforced. Pre and post nuptial agreements are thus viewed as the plague that will end the marriage institution of the current generation. This view defeats the idea of viewing such agreements as granting financial freedom following divorce since they advocate for divorce19. Conclusion Pre and post-nuptial agreements have become on the increase and hence necessitating the need for the English law to inculcate them in its jurisdiction. The case of Granatino v. Radmacher was the first move by the English Supreme Court to give audience to such a case. However, there are challenges that have been cited against financial freedom especially by the proponents of sanctity of marriage. A great contributor to this school of thought is Lord Hale whose vote was not among the majority vote that passed the ruling. Consequently, marriage is for lifetime and should not be an avenue that cultivates divorce. Also children suffer and thus should not be subjected to such agreements by their parents. However, despite the challenges faced, a ruling made by the Supreme Court is ultimate to opinions and other judgments by other courts hence remain the stand of this discussion. Pre-nuptial agreements accord financial freedom to the involved parties since they get into the contract knowingly and consent to them. Secondly, the agreement having been enforced by the court is binding to both parties to the latter. Moreover, marriage should not be used as an avenue where one enriches from the other party. However, to merge both ideas, this discussion recommends that reforms are embedded into the marriage Act so as to cushion married people from such agreements while also modifying them to mould them into the model of the public opinion. Though this issue has ensued unrelenting debate, the Supreme Court ruling still prevails and thus the ruling in the case of Granatino and Radmacher was a welcome development in the area of financial freedom. Bibliography A. CASES Cocksedge v. Cocksadge (1844) 14 Sim 244; 13 LJ Ch 384 Cordle v Cordle [2001] EWCA Civ 1791, [2002] 1 WLR 1441 H v. W (1857) 3 K & J 382 Radmacher v. Granatino [2010] UKSC 42 Macleod v. Macleod (Isle of Man) [2008] UKPC 64 McCartney v Mills McCartney [2008] EWHC 401 (Fam), [2008] 1 FLR 1508. Miller v. Miller [2006] UKHL 24, [2006] 2 AC 618 B. STATUTORY LAWS Section 25 of the Matrimonial Causes Act 1973 C. BOOKS K. Stoner and S. Irving. Prenuptial agreements: how to write a fair and lasting contract, Nolo; United States; 2008; pp. 79 T. Bond, J. Black and J. Bridge. Family Law 2008; Oxford University press; United Kingdom: 2008; pp. 131. D. JOURNALS C. Barton, and M. Hibbs, “Ancillary Financial Relief and Fat Cat(tle) Divorce”. The Modern Law Review, Vol. 65: 2002: pp. 79–87. doi: 10.1111/1468-2230.00367 H. Trim. ANCILLARY RELIEF: Radmacher v Granatino [2010] UKSC 42, Family law report. Retrieved on 24 February 2012 from < http://www.familylaw.co.uk/articles/UKSC201042 > J. Probert. “A review of cohabitation: The financial consequences of relationship breakdown, law com. no. 307 (HMSO 2007)”. Family Law Quarterly, Vol. 41; 2007: pp. 521-536. M. Evans. “Wrongs committed during a marriage: The child that no area of the law wants to adopt [dagger]”. Washington and Lee Law Review, Vol. 66; 2009: pp. 465-501 M. Garrison. “Nonmarital cohabitation: Social revolution and legal regulation”. Family Law Quarterly, Vol. 42: 2008: pp. 309 C. WEBSITES Family Law Week, Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, Retrieved on 24 February 2012 from J. Kentridge. Case Comment: Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, The United Kingdom Supreme Court, 24 October 2010. Retrieved on 24 February 2012 from Read More