Annulment of Civil Partnerships - Essay Example

?“Rightly or wrongly there is now a presumption that the court will give effect to a nuptial agreement (before or after marriage) freely entered and understood, provided it is not unfair in the prevailing circumstances. It is no longer just one of the circumstances of the case.” Introduction In recent years, UK and other countries globally, have witnessed rising instances of divorces and annulment of civil partnerships,1 making them more socially acceptable, than they were, even some decades back. However, such marriage or partnership dissolutions often lead to pronounced consequences that are both financial and emotional in nature. The financial consequences are primarily legal in nature, majority of which are court judgements. The statutory regulations in UK (the statutes of Matrimonial Causes Act 1973 and the Civil Partnership Act 2004) do not outline any rules or principles, which help to resolve the problem of property division of the couple, after the end of their partnership or divorce.2 They however provide all the issues that must be taken into consideration,3 while giving the courts “a wide discretion to make orders for sharing, selling or settling property and for the payment of maintenance, both for the adults and for any children.”4 With divorces becoming more common, pre-nup agreements are now considered as important, where the couple decides (prior marriage) on how they wish to divide their assets, once they annul their partnership or divorce. Even though pre-nups are legally enforceable in many countries worldwide, in UK they are not legally binding on the courts. This article examines the present legal scenario in UK related to pre-nuptial agreements or “pre-nups” (more commonly referred to as “ante-nuptial agreements” in UK legal terms), in the context of the Radmacher v Granatino case. It explores to find out whether it is really true that under the present legal scenario, “the court will give effect to a nuptial agreement (before or after marriage) freely entered and understood, provided it is not unfair in the prevailing circumstances. It is no longer just one of the circumstances of the case.”5 The basis of this consideration arises from the fact that previously pre and post-nups were treated under UK legal system with little regard and a great deal of suspicion. In recent times, many high-profile divorce/annulment of partnership cases have seen outcomes where ‘ancillary relief’ (application for financial support) has been arbitrated/affected by pre-nup or post-nup agreements made in England.6 In the appeal Radmacher v Granatino,7 the judgement passed in March 2010 by UK Supreme Court was significant within UK legal systems, as here it was for the first time that a pre-nup agreement signed in Germany (prior to a marriage in England) was accepted and held binding by the UK Supreme Court. Discussion Background to marriage dissolution legal scenario in UK: Marriage under UK family law is generally viewed as a contract,8 and to obtain validity for this contract the concerned parties would have to be unrelated within the specified prohibited ambit, must be more than 16 years of age, and the contract must be between a male and female who are not already married.9  If any one of these ‘points of capacity’ was absent then the ‘contract’ was nullified, under various sections of the Matrimonial Causes Act 1973 and the Marriage act 1949.10 Besides these ‘points of capacity,’ other formalities necessary to make a marriage valid, included, that the occasion be venerated, accredited, and registered. Furthermore, the partners must possess adequate mental capacity to enter into the marriage contract, both, consciously and willingly. 11 Under UK legal system, there are two processes to dissolve a marriage contract.  If in a marriage there is a defect (within the realms of the aforementioned points), it is marked as voidable. Here the partners can apply for a decree of nullity under the Matrimonial Causes Act 1973 (Section 12). 12 A marriage contract that is ‘valid’ can be dissolved on the basis of being “broken down irretrievably”13 under the Matrimonial Causes Act 1973 (Section 1-1), where the concerned parties must prove one or more points out of the five listed under Section 1(2) of the Act.14 Once the contract has been nullified, the couple cannot be considered as spouses, under the legal system.  Judicial dissolution of marriage under Matrimonial Causes Act 1973 is received under the Section 17, again under the condition that one out of the five pointers listed under Section1(2) is proven by the concerned parties. This is different from a divorce, where the couple is not legally bound to co-habit, yet remain legally married. However, under judicial separation the couple may apply ancillary relief, as in divorces. The Matrimonial Causes Act 1973 provides large-scale powers to the court that allows it to make decisions on family assets, after the divorce/judicial separation has taken place, while under the Family Law Act 1996 (schedule 7)  the partners are allowed for application of transferring tenancies. Legal status of pre and post nups in UK before the ‘Radmacher v Granatino case:’ In a marriage, the concerned parties may arrive to a mutual agreement where they decide on the division of their assets on divorce. There are three kinds of such agreements: pre or ante nups, post-nups, and post-separation agreement. While exploring the three agreements, some of the public policy regulations hold relevance: During nineteenth century UK courts ruled that any contract (made prior to, or after marriage) with provisions for future divorce/separation was nullified, and hence not enforceable.15 Under UK public policies, the courts abstained from coercing agreements that aimed to obviate court jurisdiction on settlement of financial assets during divorce or separation; and 16 The presence of a rule that makes it impossible for the spouses to ‘contract out’ from carrying out their duties towards their children. Prior to marrying, a couple may decide on the nature of division of their assets, in case of later divorce or separation, often with legal assistance, for dealing with law related issues, if the matter went to court. This form of an agreement may be actualised in the form of a “consent order” authorised by a court. Without this ‘consent order,’ the parties may file an application for receiving ‘ancillary relief’ or financial support, which would then depend upon the final approval of the court. Ancillary relief may be awarded to any one of the spouse, based on present circumstances and case facts. As per the Matrimonial Causes Act 1973 (Section 25),17 the court has wide volition regarding asset division, during divorce proceedings. The court must carefully consider all related case facts, and present circumstances of the appeal (especially in connection to the issues marked within Section 25), with child welfare (minor ones- those under 18 years of age) being given special priority. In 1998, under the then ruling government (Labour Party) a review paper known as “Supporting families” was published.18 The paper outlined certain practical measures for assisting families, and discussed the topic of pre-nups where it accepted that couples might be discouraged from signing pre-nups if it was clear that the courts would not consider such agreements, while determining nature of assets division or providing ancillary relief.19 In this paper, there were proposals to consider making written pre and post nups on assets division and ancillary relief, legally binding for the couples seeking such agreements.20 However, it was clearly stated that such agreements could not be made obligatory for all couples wanting to marry, and the interests of the weaker (economically) partner, and children, would be accorded protection though six pointers, and if one or more of the six pointers were applicable, the ‘written’ pre or post nup would stand nullified: 1. “where there is a child of the family, whether or not that child was alive or a child of the family at the time the agreement was made; 2. where under the general law of contract the agreement is unenforceable, including if the contract attempted to lay an obligation on a third party who had not agreed in advance; 3. where one or both of the couple did not receive independent legal advice before entering into the agreement; 4. where the court considers that the enforcement of the agreement would cause significant injustice (to one or both of the couple or a child of the marriage); 5. where one or both of the couple have failed to give full disclosure of assets and property before the agreement was made; 6. where the agreement is made fewer than 21 days prior to the marriage (this would prevent a nuptial agreement being forced on people shortly before their wedding day, when they may not feel able to resist).”21 Thus, as per the English Family Law, the public policy indicated that pre-nups were not legally binding, and hence not factually enforceable, as was evident in the F v F [1995] appeal where no importance was attached to pre-nup. 22 However, in case of an ad hoc pre-nup, the court was still under obligation to take into account the agreement, as was evident in the appeal M v M [2002]. 23  In this case, Connell J stated, “the pre-nuptial agreement had guided him towards a more modest award to the wife than he might otherwise have been minded to make.” 24 However, it was the landmark ruling in Radmacher v Granatino [October 2010], that brought in large-scale changes in the legal status of pre and post nups in UK. In this case, the Supreme Court ruled (through a majority ruling of eight to one), that UK courts are under obligation to give full effect to pre-nups that had been agreed upon by both parties, unless under present conditions the court decides it would be unfair to force the couple to stick to their pre-nup agreement. Legal status of pre and post nups in UK after the ‘Radmacher v Granatino case:’ Thus, we have seen that traditionally in UK pre-nup agreements were not legally binding and hence unenforceable as public policies.25 It is only recently, that the courts have given importance to pre-nuptial agreement while determining assets division, and providing for ancillary relief (under section 25 of Matrimonial Causes Act 1973). In the Radmacher v Granatino case,26 the wife, a German heiress, was worth nearly ?100m. The French husband, a former investment banker, was pursuing research at Oxford, during divorce and the couple had two young children from their marriage. In 1988, prior to the marriage, the couple had signed a pre-nup in Germany (enforceable in Germany and France), where they decided to make claims against each other, if they filed for divorce. In 2006, after official separation, despite pre nup, the husband claimed for ancillary relief in UK High Court, which granted him financial relief worth ?5,560,000.27 In July 2009, the wife filed a case at the Court of Appeal, upon which the Court read out its views on the recent status of pre-nups, for the advantage of the Section 25 under Matrimonial Causes Act 1973. 28 Here Lord Justice Thorpe taken into reference his own comments in the F v F case [1995] 29 recommended that courts give “due weight” to pre-nups. He further added that it would be impractical for UK courts to disregard pre-nups any longer, if it wished to stay at par with the common law worldwide, and the parliament must work towards bringing in the necessary legal reforms. 30 Lord Justice Rix reaffirmed Lord Justice Thorpe’s statements and stated that the courts must necessarily persist in applying “section 25 in accordance with its developing jurisprudence.” 31 Along with this the Supreme Court appeal by the husband was dismissed, and in October 2010, the Supreme Court made the landmark judgment (as already stated), made applicable to both pre and post nup agreements. Thus, after the Radmacher v Granatino case, prenup agreements though not binding in all divorce/ separation cases, but, under the right circumstances, can induce compelling influence. Even though a pre-nup may not be able to stop a party concerned in a divorce/ separation from asking a court to formulate on assets division, but depending on the circumstances, the court decide in terms of the written prenup, with each agreement considered on a case-by–case basis by the court. The couple must sign the ante/pre-nup voluntarily, without any pressure, with the partners fully aware of all information regarding financial worth of the spouse and the future implication of the agreement. Without curbing the flexibility of the courts necessary for producing fair results, the Supreme Court held that, in future, one could automatically infer that couples who sign pre-nuptial agreements, where English law can presumably be applied, must be given effect to in UK courts. Conclusion In the Radmacher v Granatino case, the Supreme Court ruling thus, makes it very clear that in a divorce/separation appeal, a pre or post nup agreement must necessarily be considered. From this pronouncement it would thus be natural to presume that “Rightly or wrongly…the court will give effect to a nuptial agreement (before or after marriage) freely entered and understood, provided it is not unfair in the prevailing circumstances. It is no longer just one of the circumstances of the case.”32 The ruling however does not imply that pre or post nups are legally binding in all divorce/separation appeals; the ‘fairness’ of advocating any agreement will have to be held by the court, and applied under “section 25 in accordance with its developing jurisprudence.” References Burton, F., Family Law. London: Routledge, 2003. Civil partnership ACT 2004, legislation.gov.uk. Accessed at, http://www.legislation.gov.uk/ukpga/2004/33/contents [22nd October 2011]. Cocksedge v Cocksedge [1844] 14 Sim 244. EWCA Civ 649, [2009] accessed at http://www.bailii.org/cgibin/markup.cgi?doc=/ew/cases/EWCA/Civ/2009/649.html&query=radmacher&method=boolean (25 October 2011). F v. F (Ancillary Relief: Substantial Assets) [1995] 2 F.L.R. 45 at 66. H v W [1857] 3 K & J 382. Herring, J., 2009. Family Law, (4th Edition). London: Longman Law Series, Pearson Longman. Hyman v Hyman [1929] AC 601. M v M [2002] 1 FLR 654. Miller G., 2003. Frontiers of family law. Aldershot: Ashgate Publishing. Radmacher v Granatino [2010] UKSC 42. Radmacher (formerly Granatino) v Granatino (Rev 4), [2010] The Judgement, accessed at, http://www.britishcaselaw.co.uk/radmacher-formerly-granatino-v-granatino-rev-4-2010-uksc-42-20-october-2010 (25th October 2011). Radmacher (formerly Granatino) v Granatino (Rev 1) [2009], par. 25 and 53, accessed at http://www.britishcaselaw.co.uk/radmacher-v-granatino-rev-1-2009-ewca-civ-649-02-july-2009 (24 October 2011). Supporting Families, A consultation paper, November 1998, accessed at,  http://www.nationalarchives.gov.uk/ERORecords/HO/421/2/acu/sfpages.pdf. (25 October 2011) The Law Commission, Marital Property Agreements, Consultation paper 198, accessed at, http://www.justice.gov.uk/lawcommission/docs/cp198_Marital_Property_Agreements_Consultation.pdf [23rd October 2011]. Trim, H., 2010. Radmacher v Granatino: The Wait is Over. Family Law, 1185-1188. Read More