Decisions in the Case of Radmacher v Granatino - Essay Example

? Comment with Regards to the Decisions Made in the Case of Radmacher v Granatino ID Number & Name Date Total Number of Words: 2,500 Introduction Each year, approximately 100,000 marriages throughout the United Kingdom are expected to end in divorce1. In the process of filing for divorce cases, majority of these married couples would seek out for legal advices concerning the legal distribution of their conjugal properties and financial assets. To minimize the complications behind the need to distribute conjugal properties and other financial assets after filing a divorce, some couples would agree to sign a pre-nuptial agreement even before the couple agrees to enter into marriage. Sometimes pertained to as an “antenuptial agreement”, a pre-nuptial agreement is actually “a contract made betwen two individuals before their marriage to each other”2. Basically, a pre-nuptial contract contains all information or details with regards to the couple’s preferred financial or property settlement in case a divorce would occur in the future. Legally speaking, a pre-nuptial contract will only take into effect after the couple has entered a marriage. This study will closely examine the case of Radmacher v Granatino3. To give the readers a clear idea with regards to this topic, a summary of the case Radmacher v Granatino will first be provided in details. As part of the study conclusion, this study will purposely explain and discuss the most obvious reasons why I strongly agree to the idea that the decision made in the case of Radmacher v Granatino ‘is as far as the courts can go’ followed by discussing whether or not it will be a good thing for the family law in England and Wales to change as suggested will be answered in details. General Information About The Case of Radmacher v Granatino The case of Radmacher v Granatino is a good example wherein the couple agreed to enter into a pre-nuptial agreement in Germany three (3) months prior to the couple’s decision to get marriage in London back in 19984, 5, 6, 7. As part of their agreement, both parties agreed that neither one of them would file any claims against the wealth of their spouse during their married or ask for financial support in case both of them agreed to file a divorce in the future8. Having two daughters who were born in 1999 and 2002, the couple decided to file a divorce sometime in October 20079, 10, 11. With an annual income of ?2.7m, it is assumed that the wife (Ms. Karin Radmacher) who has a German nationality is more financially stable as compared to the husband (Mr. Nicolas Granatino) who has a French nationality12. On top of a relatively much higher income, it was noted that the wife is also the heiress of real properties with an estimated value of ?100m13. As a former investment banker who is currently working as a researcher at Oxford, Mr. Granatino is earning only ?30,000 each year14, 15. Due to financial instability, Mr. Granatino applied for some financial assistance from the High Court. Initially, he was granted “?5.56m” and additional €630,000 wherein he could purchase a house in Germany where his children are expected to visit him from time to time16, 17 . The problem with this amount is that the value of money that was granted to Mr. Granatino is more than enough to support him financially for life. As explained by Rackley18 (p. 153), “Mr. Granatino’s success at first instance was short-lived”. Considering the issue on fairness and the one-sidedness of the first judgment, Ms. Radmacher decided to file an appeal to re-open the case19. On the 2nd of July 2009, Ms. Radmacher contested the idea that Mr. Granatino should only be given the privilege to continuously play his role as the father of the two daughters and not to financially support him for his own personal needs. In the court, Mr. Granatino claimed that he failed to receive an “independent legal advice” prior to signing the pre-nuptial agreement and that the said agreement should be considered “defective” for this matter20, 21. He also contested that he did not know exactly how wealthy his wife is before he signed the pre-nuptial contract agreement22, 23. When deciding on whether or not an ancillary relief should be awarded to the less financially stable spouse in case a pre-nuptial agreement contract was signed by the couple prior to their marriage, the Court of Appeal made it clear that the final decision of the court should be based on a fair judgment at all times24, 25. With the majority vote of 8:1, the Court of Appeal decided that there was not even one specific factor in the case of Radmacher v Granatino that can literally place the husband in an unfair position. First of all, Mr. Granatino had freely signed the pre-nuptial agreement contract. Considering the fact that Mr. Granatino used to work as a former investment banker and is currently a researcher at Oxford clearly suggests that he is a very well educated person. Within this context, it seems that the Court of Appeal assumed that Mr. Granatino knows very well the implication of signing the pre-nuptial agreement contract prior to his marriage to Ms. Radmacher. For this reason, the Court of Appeal decided to reduce the award granted to Mr. Granatino from the value of almost ?5.6m down to ?1m26, 27. In line with this, Wilson LJ strongly suggests that “the husband’s claim should be limited to that of a home-maker for the girls”28. Discussion The case of Radmacher v Granatino is unique in the sense that the pre-nuptial agreement between the married couple was made in Germany which is obviously outside the jurisdiction of the England and Wales. Considering the differences in the jurisdiction where the pre-nuptial agreement was signed and the jurisdiction in which the case was litigated29, I strongly agree with the idea that the decision made in the case of Radmacher v Granatino ‘is already set as far as the courts can go’. Even though the Court of Appeal has decided to acknowledge the significance of a pre-nuptial agreement, one must not disregard the fact that a pre-nuptial agreement contract is not literally enforceable in UK due to its public policy30, 31, 32, 33. Given the fact that pre-nuptial agreement is not legally enforceable in the United Kingdom, one can say that there is really no solid or clear grounds wherein the court or court of appeal could precisely based their final judgment onto. Furthermore, the practice of pre-nuptial agreement is legally valid and is widely used in Germany and France34. Therefore, the Court of Appeal cannot simply disregard the fact that the pre-nuptial agreement between Mr. Granatino and Ms. Radmacher is indeed valid (at least in the case of the couple)35, 36, 37. According to Probert and Blanpain38, the only thing that the English law considers is the use of a post-nuptial agreement which usually takes place after the couple is married and are in the process of living under the same roof39. Specifically the concept of “post-nuptial agreement” is totally different from a “pre-nuptial agreement”. Since there is really no solid or clear grounds wherein the court or court of appeal could precisely based their final judgment when it comes to dealing with pre-nuptial agreement cases, the Court of Appeal was left with no other choice but to make use of a “decisive weight” during the entire process of litigating the case of Radmacher v Granatino40, 41, 42, 43. It means that decisive factor should be present before the Court of Appeal can determine whether or not ancillary relief should be applied in the case of a pre-nuptial agreement44. For example, Mr. Granatino acknowledged that he failed to receive an “independent legal advice” prior to signing the pre-nuptial agreement45,46, 47. However, failure to seek independent legal advice for this matter does not totally disregard the fact that Mr. Granatino willingly signed the pre-nuptial agreement contract. For this reason, the agreement between the Mr. Granatino and Ms. Radmacher prior to their marriage should not be considered void48. In line with this, Wilson LJ explained that “he had well understood the effect of the agreement, had had the opportunity to take independent advice, but had failed to do so”49. It means that prior to signing the pre-nuptial contract; Mr. Granatino had all the financial resources he can use to seek legal advice concerning the issue on such agreement. The fact that Mr. Granatino chose not to seek legal advice prior to signing the pre-nuptial agreement does not free legally him from the fact that he signed the contract on his free will. Therefore, the pre-nuptial agreement between the two couples is considered valid. Mr. Granatino also contested that idea that he did not know exactly how wealthy his wife is before he signed the pre-nuptial contract agreement50. For this matter, even though Ms. Radmacher did not disclose the true value of her assets, Wilson LJ argued that Mr. Granatino knows very well that the wife came from a very wealthy family yet he failed to show any signs of interest on Ms. Radmacher’s wealth prior to their marriage51. In case Mr. Granatino is interested in the wealth of Ms. Radmacher, he could have easily disregarded the signing of the pre-nuptial agreement contract. Most of the EU countries are already practicing the use of pre-nuptial agreement but not in England and Wales. For this reason, the first time the case of Radmacher v Granatino was litigated in the court, the judge was not able to give sufficient weight to important issues such as the fact that Mr. Granatino (although not as wealthy as Ms. Radmacher) is already established within the world of finance52, 53. It means that even without receiving some ancillary relief out of the said divorce case, Mr. Granatino could or should be able to financially support himself for whatever he needs without the financial support of Ms. Radmacher. Considering the financial situation of Mr. Granatino, the judge initially failed to consider the idea that he as a person is very much capable of seeking independent legal advice prior to the signing of the pre-nuptial agreement contract. Furthermore, Mr. Granatino knows very well that Ms. Radmacher belongs to a wealthy family and could definitely inherit some wealth from her parents54. The fact that Mr. Granatino chose not to enter into any negotiations prior to the signing of the contract made it clear that it was his decision not to go after Ms. Radmacher’s wealth in case their marriage fail55, 56. Throughout the United Kingdom, one should know by heart that it is actually the UK Parliament that is supposed to draft and pass some bills and legislations especially when it comes to legal matters that could significantly impact the lives of many people57. In most cases, the court is there merely to make legal judgment based on how they would interpret the legislations that are being passed by the UK Parliament. In the case of Radmacher v Granatino, the Court of Appeal did not wait for the UK Parliament to make new legislation with regards to the use or how the courts should solve legal matters concerning pre-nuptial agreement cases. For this matter alone, I strongly believe that the courts have already gone as far as they could in solving the case of Radmacher v Granatino. Conclusion The decision made in the case of Radmacher v Granatino ‘is already set as far as the courts can go’. As a common knowledge, it is a practice throughout the United Kingdom for the Parliament to make certain legislations in which the courts will base their final decisions. Considering the fact that the UK legislations with regards to marriages does not literally promote the use of pre-nuptial agreement contracts, the Court of Appeal considered the pre-nuptial agreement contract between Mr. Granatino and Ms. Radmacher valid. Since there is no firm legislation when it comes to the use of pre-nuptial agreement contract in the United Kingdom, Court of Appeal decided to make use of a “decisive weight” during the entire process of litigating the case of Radmacher v Granatino58, 59, 60, 61. Considering the efforts made by the Court of Appeal in solving the case between Mr. Granatino and Ms. Radmacher, one can conclude that the courts really went out of their way to solve the case. Over the years, there has been a gradual shift in the court’s decision with regards to the process of acknowledging the importance or significance of a pre-nuptial agreement contract between a husband and a wife62. Even though acknowledgement in the use of pre-nuptial agreement contract was very limited back in the 19th century, the Court of Appeal’s decision in the case of Radmacher v Granatino has significantly moved from not acknowledging or limitedly acknowledging the principles of a pre-nuptial agreement contract to a full acknowledgement of its validity and legality63, 64, 65. With the purpose of protecting one’s own wealth from the possibility of future divorce cases, the number of people who will be signing pre-nuptial agreement contracts prior to their marriage is expected to gradually increase over the next few years. Therefore, to avoid encountering similar problems or loopholes that were encountered in the case of Radmacher v Granatino, this study strongly suggests that it will be a good thing for the family law in England and Wales to change (as suggested). In majority of divorce cases, it is often the women who are at a more disadvantageous side as compared to men since majority of these women had to sacrifice their own career in order to give the love and care needed by both the husband and children. Up to the present time, there are only minor cases wherein the husband ends up playing the role of a mother. Regardless of who stays with the children or who goes out of the house to earn for a living, the act of promoting the use of pre-nuptial agreement contracts could therefore increase the bargaining power of the bread-winner at the expense of the person who stays at home and take care of the children. Regardless of gender, possible changes in the family law should always consider the side of the person who stays at home and take care of the children. Personally speaking, I do not have any negative opinion when it comes to the use of pre-nuptial agreement contract. Although the use of a pre-nuptial agreement contract can make one spouse more advantageous at the expense of the other spouse, I strongly believe that the use of this tool can also serve as a legal protection to either the husband or wife in case their spouse commit adultery or is being unfaithful to their spouses. Therefore, with regards to possible future changes in the family law, the courst should consider not only the reason for dissolving the marriage but also the case of the less advantagous party. References BBC News. Supreme Court rules in favour of pre-nuptial agreement. The UK Supreme Court has ruled that a pre-nuptial agreement is binding in the case of a German paper company heiress. 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Marriage and Divorse in the Supreme Court and the Law Commission: For Love or Money. Modern Law Review. 2011; 74(3): 430-455. Probert, R., Blanpain, R. Family Law in England and Wales. The Netherlands: Kluwer Law International; 2011. Rackley, E. Women, Judging and the Judiciary: From Difference to Diversity. Routledge; 2013. Scherpe, J. Farness, freedom and foreign elements - Marital agreements in England and Wales after Radmacher v Granatino. Child and Family Law Quarterly. 2011; 23(4): 513-538. Sendall, J. Family Law Handbook 2012. Oxford University Press; 2012. Supreme Court. Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant). [2010] UKSC 42. On appeal from: 2009 EWCA Civ 649. [2010 October 20; cited 2013 January 8] Available from: Read More