Law Review: Pre-Nups in Family Law cases

Not being a family lawyer, and having absolutely no plans to ever marry again now that I am deliriously single  (My ex and I are good friends), I rarely take any interest in family law cases – leaving that to my friends over At Pink Tape, Family Lore and The Divorce Manual (Now Researching Reform)

The extensive  judgment of The Supreme Court to my eyes, therefore, can be summed up in this way:  “Fudge: Pre-nups are OK if we think they are OK but it is for Parliament to settle the matter.”

Read judgment

German heiress wins legal battle over pre-nuptial agreement

Katrin Radmacher, a German heiress, has won a Supreme Court case over her divorce which gives new status to pre-nuptial agreements.

The Telegraph reports: By a majority of eight to one, the justices dismissed the ex-husband’s appeal, saying that following their ruling “it will be natural to infer that parties entering into agreements will intend that effect be given to them”.

The justices said they agreed with the Court of Appeal that in the right case a pre-nup agreement can have decisive or compelling weight.

Lord Phillips, president of the Supreme Court, said the courts would still have the discretion to waive any pre-nup or post-nup agreement, especially when it was unfair to any children of the marriage.

I cannot, for the life of me see, in the 21st century, what business it is of the State or the judges to decide upon matters of divorce between consenting adults.  I have no problem at all in the State intervening to ensure that children are looked after – because if the parents can’t do it humanely and sensibly it is only right that the state shoud step in.

For my part – marriage is a relationship and just as with any relationship, if the parties wish to have a degree of formality, can be subject to the law of contract.  This is what a pre-nuptial agreement is.  And for those who are concerned that this may be unfair because a wife or husband is pressured into it – the Law of Contract does provide relief by way of Duress and undue influence.  Arrangements between consenting adults in the modern day should, if they wish it to be so, be regulated by the law of contract and not the idiosyncrasies of the values of a bygone era.

It will be interesting to see how many carpetbaggers, WAGS and Heat magazine readers will be marrying should pre-nuptial agreements gain more judicial favour.   Marrying for money may not be quite such a sensible deal in future if the pre-nup is drafted properly?!

7 thoughts on “Law Review: Pre-Nups in Family Law cases

  1. Let me enlighten you, Charon, as to “what business it is of the State or the judges to decide upon matters of divorce between consenting adults” – it’s called conservatism, which argues that the basis of society is the family not the individual. Liberalism (and the logic of capitalism is in this sense liberal) argues the precise opposite.

    Socialists have never been able to decide which side of the line they’re on – their intellectual leaders are liberals, but many of the masses they wish to lead are conservatives, placing greater trust in the family than the State as a form of welfare provision in hard times.

    In this context, a childless marriage (whether by intention or misfortune) is a political statement. Why do you think gays have been so anxious to be able to marry? From some abstract desire for formal equality? That could have been achieved by campaigning for the restriction of marriage to couples with children, which seems to be your preferred position.

  2. Thanks Mike – I understand the doctrine – hence my reference to 21st century.

    I do not subscribe to conservative values or ideology personally – hence my expression is of a different (or discordant?) view.

    I have little interest in families – believing that the individual is far more interesting. If individuals wish to have families that is fine by me but why they think that those who do not should subsidise them is beyond me. I could make a point about Child Benefit on this one – but shall decline on this occasion 🙂

  3. One reason that the childless might be thought to have a duty to subsidise families is that it is those of us who have bred who will supply the staff for you in years to come when you (and I for that matter) are dribbling at both ends…

  4. I somehow doubt that the Radmacher v Grantino decision is a complete green light to “pre-nups” (or ante-nups as the court called them). I see in the judgment a lot of “amber lights” and I am sure that the divorce law experts will spot a lot more and maybe even some “red” lights.

    As I read it – and could be way off beam – the pre nup in all the circumstances of the case was to be given decisive weight. I cannot see that being so in many other cases.

    Over now to the divorce experts who I am sure will write endlessly about this case which was between immensely rich people. My own concern has always been that justice should be open to all and, sadly, the doors are being slammed in people’s faces as I write these very words.

  5. Let’s be honest, ancillary relief is a bloody boring area, but the Radmacher decision is interesting.

    To my mind, it highlights three important aspects: the first being the judiciary’s desire to retain control over family matters (and thus retain a certain foothold in the system), the second being the benefits of the decision (and to whom they go) and thirdly, the state’s right to involve themselves in said family matters.

    In relation to the highly political first aspect, senior family judges have for some time now been upping their exposure by making themselves very vocal, either by attending pressure group meetings or publishing various judgments in which they share their sentiments, usually on how much better the judiciary could run the system if total control of the court process were given to them. Their nervousness is understandable. The family courts’ future is uncertain as is the role of the judiciary’s and members like Sir Nicholas Wall and Lord Justice Munby have stepped into the fray as ambassadors of the sector, with a view to offering themselves as protectors of the people. In essence and on the surface, Radmacher does that. It tells us prenups and antenups are binding as long as they meet the standards of fairness.

    Quite what those standards are, remain to be seen but this will be the lucrative loophole lawyers will love to exploit for it is the cash cow the judiciary have given them. The more cynical amongst us may feel that this cash cow may have been premeditated and a nod to the legal industry: if we acquire more procedural control, we can make sure you share the spoils.

    Another possible beneficiary of the decision might be children caught up in prenups, who have one earning parent and another non-earning parent, or carer, who signed the prenup but which did not factor in the care of any future children. This does seem unlikely though, given that those seeking prenups will probably be able to afford decent legal advice and end up with a draft that considers and makes arrangements for most reasonable future outcomes.

    But should the state then be able to frustrate these contracts? Should we be looking at marriage as if it is indeed a series of contracts or is it time for us to move the whole affair out of this field? My personal fear is that should we mechanise marriage to the point where it is all just about bolstering future consumption and services owed, that marriage will no longer have that distinctive underlying quality that most of us were lured in by in the first place: love.

    With the history of the marital contract being steeped in ownership from the start, perhaps we have gone on too long with this outdated notion and perhaps now is the time to reflect on how marriage should be processed, whether the contractual element is defunct and whether we need to replace it with something a little more unconventional.

    Quite what that might be, I don’t know, but to my mind when you say “I do” it should never come with a caveat.

  6. Sobk13, it would be nice to think that all marriages were contracted for love but obviously that is not the case.

    Historically, where either of the parties owned or was due to inherit property the marriage was seen as a way of protecting the assets of each family. This was true in the past of royals and aristos and is still to-day the thinking behind the “arranged marriage” culture. In such unions, love comes after marriage rather than the other way about.

    At the other end of the social scale – and not only there – the practice was for the woman to marry the man by whom she was pregnant. I suppose these were “love matches” if by love you mean lust.

    I suspect, however, that you are too well educated to fall into that trap. Psychoanalysts, indeed, find the whole concept of sexual “love” both fascinating and disturbing – is it a sign of the fulfilment of a healthy psyche, or is it a sign of morbidity – the behaviour of people who cannot find completeness, happiness and peace within themselves? Perhaps like me you think it’s six of one and half-a-dozen of the other.

    One advantage of judicial intervention you don’t mention is the possibility of designing templates for pre-nups which could be sold on the Internet as templates for wills and other forms of contract are now. Hopefully such templates would require the couple to demonstrate that they had had a third party run the rule over their affections (a.k.a. “counselling”), as Protestant ministers and Rabbis sometimes do before they marry people.

  7. Family Law Review

    For the attention of the ministry of justice family law review board and Lord Justice Sir Nicholas Wall. Under the present dis-functional system l was systematically dismantled and destroyed for my children as their Father by the experts, the family law system, HAP (hostile aggressive parenting), long period of child – father separation and delays. These so called experts and system work primarily for the mothers interest and not for the children. This is most defiantly not in the best interest of the child. The system is utterly unfair and inhumane for children as it stands. Here is what Sir Bob Geldof has to say about the current family law system Sir Bob Geldof in the Telegraph
    My proposals for Lord Justice Sir Nicholas Wall’s and the ministry of justice family law review boards consideration under the UK family law review and savings to be made by my proposals. They are devised from my experience of the present system, which is only objective as l see it.

    1 …That direction hearings are abolished, as this could be undertaken by the courts office, ie. court papers (evidence), statements, people to attend, disclosures. All of this could be done as a tick box paper exercise by the two opposing barristers and solicitors. Then signed off by the Judge making it a binding order. This would save a vast amount of court time and stream line the system. Call it an ” Administered Order ”

    2…..Opposing barristers should not come from the same chambers by a new law or written into there code of professional conduct, as the plaintiff would not use the same solicitors as the defendant, but this is common practice at present and is rather questionable at best.

    3….. Experts should always by law come to court to give verbal evidence at the first hearing, after there expert report has been provided. This gives the Judge cogent justification in a decision that Judge may wish to make against the reports findings, that is if the Judge chooses to do so. This would avoid many appeal hearings saving court time, leading to quicker resolution for the families involved, plus avoiding costs against the family in high court proceedings. This also if considered would stop the continuation of proceedings at county court level after an appeal which if it had to be conceded at the high court of appeal on this technicality or fought and lost.

    4…. Mediation would only work with parties who would accept the mediation. All my experience of proceedings is that the Mother in a vast majority of cases, who is the sole custodial parent is overtly hostile to the other parent the Father (but not in all cases as demonstrated below in 6). Mediation would not work in a majority of cases and only be another huddle in already lengthy process adding to the delays, which would work for the hostile Mothers favour of trying to separate and alienate the father from the children by time delays (this is not the answer in my view)

    5…… There needs to be an early assessment of whether HAP (hostile aggressive parenting) is present and is the most likely cause of the problems being encountered by the family. See this very useful site with many useful diagnoses and resolutions to the very real problem that the courts, experts and social services do not understand or even recognise .

    6….. Both parties mother and father could fill in the form or something similar, here Comparing the answers would help the court to understand what was going on in the family and identify HAPs presence early. (l will refer how to deal with this later). My problem as with many Fathers is the constant false allegations made by the Mother and any siblings she can enlist, this is dealt with in the HAP links above because again the false allegations are part of HAP. Once the allegations are proved false at a fact and finding hearing, this would start the the sanctions for that parent engaging in HAP as l suggest in 8 below. The current system only deals with the symptoms and not the cause, it needs to deal with the issues. Lord Justice Ward acknowledges the issues of false allegations and the inability of the present system to deal with HAP. Lord Justice Ward’s interview here with the Sunday Times showing what happens when HAP is not dealt with and left to ravage a family, my story is hauntingly similar. Lord Justice Wards Interview With The Sunday TimesTo prove my neutrality and reason for this blog which is children’s suffering, l am going to give the most terrible and most extreme consequence of HAP as an example. This is of a Father with its worst form. Everyone has heard of ” Fathers For Justice ” and there media antic’s. Here is the founder Matt O’ Connor and why he disbanded the organisation in the Sun newspaper Matt O’Connor in the Sun Fathers For Justice Disbandment The symptoms may have been prevalent in the father Brian Philcox. The children were at Critical Risk of HAP from him, here at the bottom of the page link you can see the risk level. Immediate intervention and removal of the children would have protected them, which the current system failed to recognise.Examples of Critical Risk Behaviours/Indicators

    7……. Proceedings should have a time limit of no longer than six months because ALL the damage is done with DELAYS, delay tactics by the opposing barrister should not be tolerated by family courts and punitive punishments for them doing so be made law.

    8…….Sanctions for parents who disobey court orders, these should not be custodial. It can be dealt with in 3 phases of increasing parenting course lengths. During this time of parent retraining and understanding of what that parent is doing to the children, the children would reside with the other parent until the course is completed. If this does not work after the third course of increased intensity and time apart, then a change of residency should be considered as the HAP parent will not refrain from the mental abuse of there children. If this is designed well it will stop a majority of trouble before it starts.
    9 …. Why does the government charge VAT on legal bills when they are not a VAT chargeable commodity, an EU treaty is to blame, but why can’t we set our own rate lower ?. It is not right that tax profits are made from these most terrible problems, it is just unacceptable in a modern democracy. This policy should be adopted by a political party as it would be a vote winner and show some political interest, which these problems need if anything is going to change.

    10…..That the UK government should move towards as in Europe the principle of “50/50 parenting”, this does not mean cutting the children in half or there time with each parent. The label should be “responsible 50/50 parenting”. Both parents putting the child needs and the now separated family first. As a duty of care as the parents they must set aside there own negativity toward each other. May be a ” Children’s Parenting Charter of Care” can be signed by both parents at the divorce or separation stage, this would set out there responsibilities and conduct to there children as divorcing or separating parents, which the courts would be able to refer to if future problems are encountered.

    Due to the continuing hostility of my ex wife and interrogation of our children, even though l have a full contact order which had to be conceded before l went to the high court of appeal due to the technicality above of the Judge not hearing verbal evidence from the expert. We had to return to the county court level to try to get the order ratified. Only for me to face a final onslaught from the expert who l am sure knew of the above HAP presence in my ex wife (or he was purely incompetent) and failed in his duty. So l have had to abandon my long legal battle of 2.5 years to keep contact for our children because it is appropriate and in there best interest for me to do so now, stopping the pressure on them to please all, which is very sad for them and for me. My children are 13 and 15 both girls and we have had many happy times together, my divorce was 10 years ago, this trouble started shortly afterwards. I have no contact with either now, even though l have had full contact with them at a level where l would have them every weekend from Friday night to Monday morning, half the school holidays and mid week after school for 7.5 years after divorce.
    May be this blog could be passed to Lord Justice Sir Nicholas Wall or the ministry of justice family law review board, l would be very happy to meet him or them, if only l could just change one thing my efforts would not be wasted. Thanks for reading my views

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