Radmacher (formerly Granatino) -v- Granatino
Dissenting judgment was delivered by Lady Hale
Lady Hale said that the issue here may be simple, but underlying it are profound questions about the nature of marriage in modern law and the role of the courts in determining it.
Marriage was not only a contract, it was also a status and had legal consequences for other people and for the State, as well as for the couple. There was an irreducible minimum within the marital package, including the couple’s mutual duty to support one another and their children. The question was how far individual couples should be free to re-write the essential feature of the marital relationship as they chose.
A further question was whether this question should be determined by the Supreme Court, rather than by parliament, preferably with the advice and assistance of the Law Commission. Review and reform of the law was needed, and the Law Commission was in a position to examine in depth all the implications of a change in policy, to examine critically such agreements and in particular whether they could be expected to reduce or increase cost.
“This is a complicated subject upon which there is a large literature and knowledgeable and thoughtful people may legitimately hold differing views,” she said. “These difficult issues cannot be resolved in an individual case, in particular a case with such very unusual features as this one.
“A court hearing a particular case can all too easily lose sight of the fact that, unlike a separation agreement, the object of an antenuptial agreement is to deny the economically weaker spouse the provision to which she – it is usually although by no means invariably she – would otherwise be entitled.
“There is a gender dimension to the issue which some may think ill-suited to a decision by a court consisting of eight men and one woman.”
Therefore, while she agreed with much of the majority judgment, there were some points where she disagreed and she decided to write a separate judgment.
She disagreed with the view (though not made definitively in this case) that antenuptial agreements are legally enforceable contracts, or that it was open to the court to hold that they are. She also disagreed that there were no relevant differences between agreements made before and after marriage; she disagreed with the formulation of the test to be applied by a court hearing an application for financial relief; she disagreed with the approach to the outcome of the case, which she considered was inconsistent with the importance attached to the status of marriage in English law, and she considered that the reform of the law on such agreements should be considered comprehensively.
After outlining the evolution of the law relating to agreements entered into by husbands and wives, she said these were in accord with the wording of the Matrimonial Proceedings and Property Act, which swept away the enforceability of the rule to live together and permitted separation agreements. However, this is different from agreements between a couple not yet married, especially as the same Act abolished the possibility of an action for breach of promise to marry.
She emphasised that the Supreme Court was not deciding whether antenuptial agreements were contractually binding, which was a matter for the Law Commission to sort out.
Even in jurisdictions which have legislated to make antenuptial agreements enforceable, distinctions were made between agreements concluded before and after marriage. “Most important is whether, and if so in what circumstances, couples should be allowed to contract out of the fundamental obligation of the married state they are about to enter.”
She proposed the following test in considering the weight to be given to such agreements: “Did each party freely enter into an agreement, intending it to have legal effect and with a full appreciation of its implications? If so, in the circumstances as they now are, would it be fair to hold them to their agreement?” This would allow the court to hold the parties to their agreement if it was fair to do so, even if the outcome was very different to what a court would order if it had not been made.
This test should apply to all agreements entered into by couples, whether it was a compromise of divorce proceedings, a separation agreement, a postnuptial agreement made while the couple was together or an antenuptial agreement.