Miles Joanna-MarriageDivorceSupreme-2011

Marriage and Divorce in the Supreme Court and the Law Commission: for Love or
Money?
Author(s): Joanna Miles
Source: The Modern Law Review , MAY 2011, Vol. 74, No. 3 (MAY 2011), pp. 430-444
Published by: Wiley on behalf of the Modern Law Review
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CASES
Marriage and Divorce in the Supreme Court and the Law

Commission: for Love or Money?
Joanna Miles*
The case note considers the impact of the Supreme Court decision in Radmacher v Granatino
regarding pre-nuptial and other classes of nuptial agreement, together with recent proposals of
the Law Commission for reform of the law relating to marital property agreements generally. It
explores in particular the question of what, if any, core obligations of marriage cannot - or should
not - be excludable by agreement.
INTRODUCTION
The Supreme Courts decision in Radmacher v Granatino1 (Radmacher) marks an

important staging post in the evolution of English laws attitude to marital agree
ments and the movement of English marriage along the spectrum 'from status to
contract'.2 It has received a mixed press, one academic commentator claiming that it
marks the 'beginning of the end for marriage'3 and the media offering varying as
ments about whether English law now recognises 'binding' pre-nuptial agreements
(or ante-nuptial' agreements, as the Supreme Court appears to prefer). The confusion
on the latter point is understandable: this comment will explore some of the questions
which remain over the legal force of pre-nuptial agreements under the current law.
But claims that the decision desecrates marriage's distinctive legal status, leaving it little
different from cohabitation, are exaggerated. What Radmacher does do is to invite dis
cussion about what the fundamental obligations of marriage entail and what sort of
marriage we want in English law, a discussion now being led by the Law Commis
sion for England and Wales following the publication of its consultation paper on
marital property agreements.4 Although there is no case law dealing with the equiv
lent issues for civil partners, the law may be assumed to be identical in that context.5
THE BACKGROUND TO RADMACHER
Radmacher can only be understood in its historical context. The highest court had
not been invited to consider any sort of marital agreement since the House of
"Trinity College, Cambridge.

1 [2010] UKSC 42.
2 S. Cretney'From Status to Contract?' in F. Rose (ed), Consensus ad idem: Essays in the Law of Contract
in Honour of GuenterTreitel (London: Sweet and Maxwell, 1996).
3 J. Herring,'Family/Divorce specialist legal update' (2010) 160 NLJ 1551.
4 Law Commission, Marital Property Agreements, Law Com CP 198 (2011) at http://wwwlawcom.
gov.uk/marital.property.htm (last visited 12 January 2011).
5 And see [2010] UKSC 42 at [131].
? 2011 The Author. The Modern Law Review ? 2011 The Modern Law Review Limited. (2011) 74(3) MLR 430-455
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Maiden, MA 02148, USA

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Joanna Miles
Lords' decision on separation agreements (those concluded between spouses at the

point of or following divorce) in Hyman v Hyman (Hyman) in the 1920s.6 At that
time, access to divorce was still heavily circumscribed, though it had that decade
for the first time been made available on equal terms for husbands and wives;7
wives had yet to be fully emancipated from the last of their legal disabilities, not
least those preventing them from entering into contracts;8 and the matrimonial
court's power to grant financial relief was still confined to ordering that ex-hus
bands pay maintenance, certainly provided their wives were innocent of any
matrimonial offence.9 Hyman established that separation agreements were valid,
but that any attempt to exclude the jurisdiction of the matrimonial court to grant
financial relief would be void (the Hyman principle). This principle was later
acknowledged in statute10 when Parliament intervened to ensure that mainte
nance agreements' could be sued on by the wives whom they were intended to
benefit and could be varied by court order.11 Should the matrimonial court be
invited to grant ancillary relief despite a separation agreement (exercising its
now very powerful, gender-neutral jurisdiction under the Matrimonial Causes
Act 1973), the Court of Appeal held in Edgar v Edgar (Edgar) that 'formal agree
ments, properly and fairly arrived at with competent legal advice, should not be
displaced unless there are good and substantial grounds for concluding that an
injustice will be done by holding the parties to the terms of their agreement'.12
Importantly, such grounds might be found in circumstances less serious than
those which would vitiate the agreement as a matter of contract law: undue pres
sure falling short of duress, changes of circumstance falling short of frustration,
exploitation of a dominant bargaining position to secure an unfair advantage,
inadequate knowledge and possibly even bad legal advice.13
However, Hyman had no impact on pre-nuptial and post-nuptial agreements,
still regarded as entirely void on grounds of public policy. That case law was based
on the premise that spouses had a duty to live together, absent grounds for divorce
a mensa et thoro14 or, after 1857, judicial divorce. This duty could not be privately
bargained away: 'if parties choose to bargain about an event which they are not
entitled to anticipate, their bargain will be bad'.15 The old cases16 expressed con
cern about agreements creating a financial incentive for one spouse to separate in
6 [1929] AC 601.
7 Matrimonial Causes Act 1923; the grounds for divorce were widened by A. P. Herbert's Matrimo
nial Causes Act 1937.
8 Effected by the Law Reform (Married Women and Tortfeasors) Act 1939, a point noted by
S. Cretney,'Contract not apt in divorce deal' (1999) 115 LQR 356.
9 Matrimonial Causes Act 1857. The history is related in S. Cretney, Family Law in theTwentieth Cen
tury (Oxford: OUP, 2003) ch 10.
10 See now Matrimonial Causes Act 1973, ss 34(1) and 35(6).
11 Maintenance Agreements Act 1957, consolidated with some amendment into the Matrimonial
Causes Act 1973, ss 34-36, following the decision in Bennett v Bennett [1952] 1 KB 249.
12 Edgar v Edgar [1980] 1WLR1410,1417.
13 ibid
14 The divorce', in fact an order permitting the spouses to live separate and apart, granted by eccle
siastical courts prior to the assumption of jurisdiction by the civil courts in 1857.
15 Duchess of Marlborough v Duke of Marlborough [1901] 1 Ch 165,171. See also Brodie v Brodie [1917] P 271.
16 Westmeath v Westmeath (1830) 6 ER 619; Cocksedge v Cocksedge (1844) 60 ER 351; Cartwright v Cart
wright (1853) 43ER385; HvW(1857) 69ER 1157.
? 2011 The Author. The Modern Law Review ? 2011 The Modern Law Review Limited.
(2011) 74(3) MLR 430-455 431

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Marriage and Divorce in the Supreme Court and the Law Commission
order to secure the payment due under the agreement, or to permit the other
spouse to leave without seeking a decree of restitution of conjugal rights, prefer
ring to pay the amount then due from the other spouse under the agreement than
to enforce continued cohabitation. Both types of incentive were regarded as injur
ious to the institution of marriage, and so such agreements had to be void as a
matter of public policy. But the framework of legal rights and duties underpin
ning this public policy has been dismantled: the duty to cohabit no longer exists
in English law, save in so far as desertion still provides a basis for divorce; husbands
can no longer resort to the self-help remedy of reasonable confinement;17 and the
decree for restitution of conjugal rights and actions for interference by third par
ties with the spousal relationship were abolished by statute in 1970.18
Despite being formally void, however, both pre-nuptial and post-nuptial
agreements had in recent years not been wholly ignored by matrimonial courts
invited under the Matrimonial Causes Act 1973 (the 1973 Act) to grant financial
relief different from that agreed. That Act grants the court very wide discretion to
determine the relief to be granted having regard to all the circumstances of the
case,19 and the existence and terms of such agreements were therefore brought
into account, however illogical that might seem given that they were contrac
tually void.20 Indeed, they had sometimes been regarded as a factor of magnetic
importance' in the exercise of the discretion to achieve a 'fair'21 outcome, either
justifying a nil award or significantly curtailing the award to be made 22
This was the background against which the Privy Council in 2008 decided
MacLeod v MacLeod,23 (MacLeod) a Manx case concerning post-nuptial agreements
(agreements concluded between spouses during marriage catering for the financial
consequences of any future divorce). The Privy Council held that, given the liberal
isation of marriage law noted above, the public policy objections to post-nuptial
agreements no longer applied. Post-nuptial agreements were therefore now valid, sub
ject only to the Hyman principle (leaving either party free to apply for ancillary relief
different from that agreed) and the power in sections 34?36 of the 1973 Act to vary
maintenance agreements' (which, it was held, applied to relevant post-nuptial agree
ments as well as to agreements made on separation)24 But the Privy Council, its judg
ment delivered by Baroness Hale, had argued that the public policy objections to pre
nuptial agreements remained intact. Albeit that these remarks were clearly obiter, they
had considerable persuasive force, emanating from the most senior English family
lawyer in a case concerning law identical to that applicable in this jurisdiction. But
the Court of Appeal in Radmacher v Granatino25 were less than persuaded. And that
brings us to the appeal to the instant case and the decision of the Supreme Court.
17 RvJackson [1891] 1 QB 671; Rv Reid [1973] QB 299.

18 Matrimonial Proceedings and Property Act 1970, s 20 and Law Reform (Miscellaneous Provi
sions) Act 1970, s 5.
19 Matrimonial Causes Act 1973, s 25(1).
20 See the remarks of Rix LJ in Radmacher v Granatino [2009] EWCA Civ 649 at [64].
21 Miller, McFarlane [2006] UKHL 24.
22 See Crossley v Crossley [2007] EWCA Civ 1491; Kv K(Ancillary Relief: Prenuptial agreement) [2003] 1
FLR120; MvM (Prenuptial agreement) [2002] 1 FLR 654.
23 [2008] UKPC 64.
24 Matrimonial Causes Act 1973, ss 34-36.
25 [2009] EWCA Civ 649.
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432 (2011) 74(3) MLR 430-455

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Joanna Miles
THE FACTS OF RADMACHER AND THE EARLIER DECISIONS

IN THE CASE
The German wife, Ms Radmacher, and French husband, Mr Granatino, were

married for eight years and had two children, whose residence they were to share
following divorce. She was fabulously wealthy with family money. He had been a
merchant banker on their marriage, but later gave up that career to pursue a rather
more lowly-paid academic career as a scientist. The parties had a pre-nuptial agree
ment - concluded in Germany in the usual manner with the assistance of a single
notary and subject to German law - which created separate property (ousting the
sharing of accrued gains which would otherwise have applied in German law on
divorce) and barred either party from applying for maintenance, even in case of
serious difficulties. This agreement would, in the circumstances of this case, have
been enforceable in both German and French courts. But the matter came before
the English courts on the wife's application: she could not establish jurisdiction in
Germany without establishing a habitual residence there for six months,26 and
did not want to leave for Germany without the children.
English courts apply the lexfori to matrimonial cases, and so it was necessary to
determine what impact the pre-nuptial agreement would have in English law on
the husband's application for ancillary relief. The husband had acknowledged the
agreement by formulating his application entirely in terms of 'need', to the exclu
sion of the 'equal sharing' principle which might otherwise have been expected to
feature to some extent in this 'big money' case.27 But since the agreement pre
cluded any 'maintenance' (a term which, in the German context, carries a some
what narrower meaning than the English concept of 'need'),28 could he even
expect a (relatively) modest award based on need?
At first instance, Baron J held that he could. In considering what weight to give
the agreement in the exercise of her 1973 Act discretion, Baron J considered that
several factors (to English eyes) made it defective: the lack of independent legal
advice, negotiations, or disclosure; the fact that the agreement precluded any claim
in any circumstances at all, even in a situation of want', which she regarded as
'manifestly unfair'; and the subsequent birth of two children.29 On the other
hand, Baron J considered that it would be unfair to ignore an agreement which
would have been enforceable in the courts of both spouses' nationalities and under
which the husband, a well-educated and financially literate man, had agreed to
forego any claim on divorce.30 Baron J therefore reduced his annual maintenance
26 Brussels II bis: Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recogni
tion and enforcement of judgments in matrimonial matters and matters of parental responsibility.
27 See the principles articulated in Miller, McFarlane n 21 above and developed in subsequent Court
of Appeal authorities: S. Harris-Short andj. Miles, Family Law: Text, Cases, and Materials (Oxford:
OUP, 2nd ed, 2011, forthcoming) ch 7. As Lady Hale notes ([2010] UKSC 42 at [186]), the fact that
the wife's wealth derived principally from family gifts would probably have justified some depar
ture from equal sharing in this case, even without the agreement, given the relatively modest
length of the marriage.
28 SeeJ. Scherpe and A. Dutta,'Cross-border enforcement of English ancillary relief orders: Fog in
the channel - Europe cut off?' (2010) 40 Fam Law 385.
29 [2008] EWHC1532 at [137]
30 Mat[89]-[93].
(2011) 74(3) MLR 430-455 433

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award by one-fifth to ?100,000 per annum, capitalised as part of a healthy lump

sum award of ?5.56M.
Ms Radmacher appealed to the Court of Appeal,31 which held that BaronJ had
given insufficient weight to the agreement, and that provision for the husband
should be considerably more confined: limited to that warranted by his role as
father during the children's dependency. Most importantly, he would therefore
receive maintenance for himself only during that period, rather than for life, and
the housing provision would also expire once the children were independent,
rather than being granted to the husband absolutely. Family lawyers regarded
the Court of Appeal's judgment as striking in both its conclusion and its reasoning.
Hampered by the persuasive authority of the Privy Council dicta regarding the
continuing voidness of pre-nuptial agreements, the Court of Appeal respectfully
struggled with the notion that pre-nuptial agreements should be treated any dif
ferently from agreements made after marriage. While unable to treat the agree
ment as presumptively dispositive,32 the Court - clearly influenced by the
outcome that would be reached in German law33 ? nevertheless placed significant
weight on party autonomy in giving the agreement 'decisive weight'34 and
adopted a functional approach to the formalities question. On the latter point,
what mattered was not whether the parties had received full independent legal
advice and disclosure, but whether in substance they had willingly and know
ingly agreed to what they were signing up for, which the parties had done. There
was no evidence to suggest that lack of advice and disclosure had caused the hus
band to sign an agreement that he would not otherwise have reached.35 The chil
dren's interests would be amply protected by the orders made and from which the
husband would indirectly benefit. As to the claimed 'manifest unfairness' of the
fact that the agreement deprived the husband of relief in any circumstances what
soever, the Court held that fairness cuts both ways. The wife and her family had
relied on the agreement: without it, the parties would not have married at all; and
the wife's father had made her further substantial gifts on its strength. It would be
unfair to her to allow the husband to bring a claim, even for real need', just because
they had been married and she had the wherewithal to pay36 In any event, he
would be more than capable of supporting himself once the children were inde
pendent, and so no need could properly be anticipated 37
Mr Granatino appealed unsuccessfully. The Supreme Court of nine Justices by a
large majority rejected the appeal, with a mainly concurring judgment from Lord
Mance but a strong dissent from Lady Hale. The majority judgment set up a new
framework within which to address the relevance of pre-nuptial (and, obiter, post
nuptial) agreements to the exercise of the court's discretion to grant ancillary relief.
31 For comment, seej. Miles, 'Radmacher v Granatino'. upping the ante-nuptial agreement' (2009) 21
CFLQ 513.
32 [2009] EWCA Civ 649 at [122]. This was, apparently, not revisited in the Supreme Court: [2010]
UKSC 42 at [185].
33 ibid at [2]-[ll], [51], [70] and [146].
34 Eg ibid at [27], [83] and [127].
35 ât[81]and[137]-[142].
36 Mat [144].
37 ibid at [42], [81] and [148].
A~A ? 2011 The Author. The Modern Law Review ? 2011 The Modern Law Review Limited.
434 (2011) 74(3) MLR 430-455

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Joanna Miles
The Supreme Court decision in Radmacher. what is the law on marital

agreements today?
The majority first rejected the Privy Councils view that the public policy objec
tions to pre-nuptial agreements still applied,38 and concluded that pre- and post
nuptial agreements should in principle be dealt with on the same footing. Both
pre-nuptial agreements and those made very early in a marriage 'purport... to
govern what may happen in an uncertain and unhoped for future,39 and both
types of agreement may be made in stressful circumstances, whether as
the price for marriage or for its continuation.40 The majority did not consider
the legal status of the spouses in the post-nuptial context bargaining over
rights and duties already (if only embryonically)41 acquired to be materially dif
ferent from that of would-be spouses bargaining over the terms of a marriage yet
to be contracted.42 The Law Commission shares this view.43 The next section of
this article explores whether the extinction of the public policy objections means
that such agreements should now be regarded as binding as a matter of contract
law. But as the majority observed, in the context of ancillary relief proceedings,
whether the agreement is binding in that sense is neither here nor there because of
the Hyman principle, which remains intact: both parties remain free at all times to
invoke the jurisdiction of the matrimonial court to grant ancillary relief.44
How, then, should that court react where a party to a pre- (or post-) nuptial
agreement nevertheless applies for ancillary relief? The majority first departed
from another plank of the MacLeod reasoning by rejecting the view that post
nuptial agreements are regulated with separation agreements by sections 34-36
of the 1973 Act: despite the language of section 34(1)45 it considered that Parlia
ment cannot have intended that those provisions should deal with agreements
between spouses about a possible future separation.46 Moreover, insofar as they
focus on change of circumstance, it also regarded section 35 s variation power
and the Edgar guidelines for the exercise of the courts discretion to grant ancillary
relief despite such an agreement to be unsuited to post-nuptial agreements as a
class. In the case of post-nuptial agreements made relatively early in marriage by
couples who had no significant wealth at that point, circumstances will invariably
have changed by the time of divorce, and so 'wider considerations' come into play
in deciding what weight to give the agreement.47
So, while separation agreements clearly remain subject to sections 34-36 of the
1973 Act and the Edgar case law, pre-nuptial (and in all probability post-nuptial)48
38 [2010] UKSC 42 at [52].

39 ibid at at [59].
40 See NAv MA [2006] EWHC 2900.
41 Radmacher [2009] EWCA Civ 649 at [125].
42 [2010] UKSC 42 at [60].
43 Law Commission, n 4. above at para 3.73-3.84.
44 [2010] UKSC 42 at [62].
45 See Lady Hale ibid at [153] and [157].
46 /ât[54]-[56].
47 ât[64]-[65].
48 Privy Council decisions have only persuasive force in English law. So too do the obiter remarks
of the Supreme Court. But given weight of numbers on each side of the argument (noting that
Lord Walker changes sides between MacLeod and Radmacher, and Lord Scott has retired), it seems
(2011) 74(3) MLR 430-455 435

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agreements fall to be handled on the new basis set out by the Supreme Court in
Radmacher. The majority posed three questions: (1) did any circumstances sur
rounding the making of the agreement detract from the weight that it should
attract? (2) conversely, did any circumstances - notably the agreements status in
German law - enhance its weight? and (3) did the circumstances as they existed by
the time of the ancillary relief proceedings make it fair to order provision differ
ent from that agreed?49
On the first issue, the Supreme Courts approach (including that of Lady
Hale)50 was similar to that of the Court of Appeal, not insisting on compliance
with any particular formal requirements but instead inquiring whether each
party in fact had all information material to his or her decision and in fact
intended that the agreement should govern the financial consequences of
divorce.51 The Court considered that any future legislation giving agreements
prima facie binding effect (to the extent of prima facie ousting the jurisdiction
of the matrimonial court to grant relief, displacing Hyman) would require 'black
and white rules' of this sort.52 Indeed, the Law Commission provisionally pro
poses that qualifying nuptial agreements' should comply with distinct formal
requirements in order to attract that force53 For the time being, however,
while sound legal advice is obviously desirable',54 an agreement will not be
deprived of weight for want of it, or disclosure, where the parties know what they
are doing.
As to the intention that the agreement should be determinative, the Court sug
gested that this will more readily be found from agreements concluded after its
decision. Certainly, the advice that would be given today about pre-nuptial agree
ments will be different, and stronger, from that previously dispensed: there is no
need now to give the rather baffling advice that the agreement is formally void,
but may nevertheless attract some weight, depending on the circumstances.
Instead, as we shall see below, the agreement may now be treated as determinative
unless it would be unfair to do so. But it would be interesting to know whether
practitioners in the last five years or so may have felt able to suggest to particular
clients that, in their circumstances, a court might give the agreement significant
weight,55 and even treat it as a factor of 'magnetic importance' to its discretionary
exercise.56 It is at this point - alone - that the Supreme Court gave any weight to
improbable that the Supreme Courts view of post-nuptial agreements would not be followed in
future.
49 [2010] UKSC 42 at [67].
50 Mat [189].
51 Mat [69].
52 ibid.
53 Law Commission, n 4. above para 5.7 and Part 6.
54 [2010] UKSC 42 at [69].
55 See Lady Hales remarks re the language of various precedents in use: ibid at [172].
56 Crossley v Crossley [2007] EWCA Civ 1491; see also the weight attached to pre-nuptial agreements
even in cases involving the birth of children: Kv K (Ancillary Relief: Prenuptial Agreement) [2003] 1
FLR 120; Mv M (Prenuptial Agreement) [2002] 1 FLR 654. Foreign agreements have also been used,
rightly or wrongly (given the potential implications of Owusu vJackson (C-281/02) [2005] QB 801
for the scope of the Brussels II bis regulation on jurisdiction in matrimonial matters (EC Reg
2201/2003); cfJKNvJCN [2010] EWHC 843), as a basis for declaring the English court to be forum
non conveniens, eg Ella v Ella [2007] EWCA Civ 99.
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Joanna Miles
the foreign aspect of the case. The majority emphasised that English law, as the lex
fori, exclusively' governed the issues to be determined.57 The Supreme Court did
not comment on the Court of Appeal's rather fuller attention to the agreement's
status in German law, a rather stark example of the developing practice of giving a
so-called 'sideways look' at the foreign law in international cases.58 But it did con
sider that English law could properly pay regard to the situation under German
law insofar as it indicated an intention that the agreement should govern on
divorce, particularly since this case concerned an agreement made prior to the
Radmacher decision, and so this foreign aspect gave the agreement more weight
than it might otherwise have merited.59
An apparent agreement and intention to be bound may have been vitiated by
factors that 'negate any effect the agreement might otherwise have'.60 Self
evidently, this covers grounds that would vitiate the agreement as a matter of
contract law. But, as under the Edgar test for separation agreements, the Supreme
Court highlighted a wider range of problems which might deprive an agreement
of weight, including the parties' emotional state at the time of their agreement,
though - like the absence of legal advice and disclosure - that cannot be consid
ered in isolation from what would have happened had [they] not been under
those pressures'.61 The parties' age, maturity and relationship history should also
be considered as part of the context in which they reached their agreement62
And finally, the court should consider whether the marriage would have pro
ceeded without the agreement, though as the Court remarks and Ms Radmacher
would doubtless emphasise, 'this may cut either way'.63
While successful navigation of these issues will not render the agreement
prima facie binding on the court (because of Hyman), it will bring the parties
within reach of the Supreme Court's key proposition, that 'The court should give
effect to a nuptial agreement that is freely entered into by each party with a full
appreciation of its implications unless in the circumstances prevailing it would
not be fair to hold the parties to their agreement'.64 It may be noted, at this point,
that the question so formulated is not so very different from the Edgar test for
separation agreements, set out above 65 It seems fair to conclude that similar sorts
of questions arise, whatever type of marital agreement one is dealing with. The
key question then is what circumstances will make it unfair to give effect to an
agreement. The Court emphasised that this would be entirely fact-dependent
57 [2010] UKSC 42 at [107].

58 See Wilson LJs discussion of this case law in Radmacher [2009] EWCA Civ 649 at [147] and
comment by J. Miles, n 31. above.
59 [2010] UKSC 42 at [74]. The courts should arguably continue to consider the position under the
law of the agreement even post-Rddmacher as the important issue is what the parties intended at the
time and, depending on their situation and expectations before marriage (and the force of the
agreement under its own law; Irish law, for example, remains ambivalent about such
agreements), they may not have the possibility of English enforcement (and so Radmacher) in
mind at all.
60 ibid at [71].
61 ibid at [72].
62 ibid at [72].
63 ibid.
64 ibid at [75].
65 At text to n 12. above.
(2011) 74(3) MLR 430-455 4J /

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and so demanded a flexible rather than rule-bound response,66 but nevertheless

(thankfully) provided some guidance 67
First, no agreement can'prejudice the reasonable requirements of any children
of the family', whose welfare is the statutory 'first consideration for the court con
sidering an application for ancillary relief68
Beyond that, the Court first reiterated its starting-point by emphasising the
need to respect party autonomy. As has been said before, 'fairness . . . lies in the
eye of the beholder',69 and so is useless as a principle for decision-making without
some notion of the criteria by which fairness is to be judged. The view of the
majority of the Supreme Court, like the Court of Appeal before them, is that
the approach to 'fairness' in this context is to be heavily conditioned by respect
for autonomy, not by the paternalistic judgement of the matrimonial court. This
is particularly so where the agreement deals with known circumstances, or for
example preserves specific non-matrimonial property', such as an inheritance,
from the expropriatory effect of the equal sharing principle.70 In this respect, it is
interesting to note the Law Commission's suggestion that one, narrow model for
reform (which might command wider support than the broader alternative)
would be to allow binding agreements only to the extent that they preclude the
sharing of non-matrimonial (or what they call special') property on divorce,
effectively creating a community of acquests.71
However, different considerations apply insofar as the agreement purports to
cater for the contingencies of an uncertain future. Here, the passage of decades and
changed circumstances over time may render an agreement unfair. This is more
likely to be a problem for pre-nuptial agreements and post-nuptial agreements
made early in marriage, than for post-nuptial agreements made shortly before
the matrimonial breakdown. This is the sort of case which makes Lady Hale
anxious about increased weight being given to pre-nuptial agreements, and her
judgment contains an eloquent account of how the vicissitudes of life may render
an agreement reached years earlier impossibly unfair in the circumstances obtain
ing at divorce.72 It may be noted here that while Lady Hale recoiled from the idea
of any sort of starting point'73 (as an impermissible gloss on the statute) and
adopted a different basic test from the majority - asking whether it would be fair
to give effect to the agreement, rather than unfair not to do so74 - much of her
analysis of (un)fairness is entirely compatible with the majority's approach.75
But how should a court respond to such a case? This is in some ways the most
interesting and normatively significant part of the Supreme Court's decision, and
is of most importance given some of the questions now being posed by the Law
66 ibid at [76].
67 ibid at [77]-[83], on which the following paragraphs are based.
68 Matrimonial Causes Act 1973, s 25(1); and see Law Commission, n 4. above at para 7.10.
69 White v White [2001] 1 AC 596, 599.
70 See generally Miller, McFarlane n 21 above, Charman v Charman [2007] EWCA Civ 503.
71 Law Commission, n 4. above para 5.49-5.61.
72 [2010] UKSC 42 at [175]-[176].
73 Mat[165]-[167].
74 ibid at [169]. Lord Mance, whilst preferring the majority formulation, considered that little turned
on which way the question was framed: at [129].
75 See the discussion at [172]?[183], in particular.
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Joanna Miles
Commission. It was said that if one party is left in a 'predicament of real need,
while the other enjoys a sufficiency or more at the end of the marriage, the court
may readily find an agreement making no provision for that party to be unfair.
Similarly, where one spouses devotion to home-making and child-care freed the
other to accumulate wealth, allowing the breadwinner to retain all that he or she
has earned' is likely to be viewed as unfair.76 In those circumstances, provision
based on need and/or compensation77 is likely to be ordered, notwithstanding
any agreement. But it is unlikely that the equal sharing will be applied in such a
case.78 Indeed, where neither party is in a situation of real need'79 on divorce (so
that needs-based provision would not be warranted in any event), it may be fair to
make no provision at all.80 In short, it will be easier henceforth to contract out of
the equal sharing principle than from needs-based (or compensatory) provision,
but even the latter may properly be excluded in certain cases. In the majority's
view (though not that of Lady Hale), this was such a case, and so the Court of
Appeal's orders were upheld.81
IN WHAT SENSE, IF ANY, ARE PRE-NUPTIAL AGREEMENTS

'BINDING', AND DOES IT MATTER?
Some commentators have argued that the Supreme Court positively precluded
the notion that pre-nuptial agreements are now contractually binding.82 This
view is difficult to sustain. The old public policy objections having withered away,
it is hard to see on what other basis an agreement otherwise compliant with the
preconditions for contractual validity can be denied that status. Indeed, both Lady
Hale and Lord Mance clearly took the majority to be deciding that pre-nuptial
agreements are now legally enforceable as contracts, expressing their relief that
any decision on that point could only be obiter.83 Several passages in the majority
judgment are most naturally read as assuming that such agreements do now enjoy
that status.84
But is the majority right to regard the contractual status of such agreements as a
'red herring'?85 Thanks to the Hyman principle, no matrimonial court can be
'bound' by a pre-nuptial agreement, any more than it can be by a separation agree
ment, and so there the contract issue is irrelevant. Are Lady Hale and Lord Mance
right to worry about such agreements being treated as binding contracts in other
76 at [81].
77 See Miller, McFarlane n 21 above.
78 ibid.
79 [2010] UKSC 42 at [118]: it seems that this is a narrower concept than the normal standard of 'need'
applied by the family courts, which is conditioned by reference to the standard of living enjoyed
during marriage, certainly following a long relationship.
80 ât[81]-[82]and[178].
81 ibid at [114]-[123]; cf Lady Hale at [184] to the end.
82 Eg Nicholas Francis QC, Prenuptial Agreements Briefing: the position after Radmacher (Bristol: Jordan
Publishing, 2010) at para 5.6.
83 [2010] UKSC 42 at [128] and [138(1)].
84 Eg ibid at [52], [56] and [62].
85 Mat [63].
(2011) 74(3) MLR 430-455 439

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contexts when the court has no power to vary pre-nuptial agreements (akin to
that exercisable under section 35 of the 1973 Act) in order to mollify their terms?86
Some cases in which a binding contract might be relevant are those with a for
eign element. Lord Mance feared contractually binding pre-nuptial agreements
might be enforced by a foreign court which finds itself with jurisdiction after
the divorce.87 However, such a court (applying its choice of law rules) might iden
tify English law as the applicable law in relation to the grant of maintenance and/
or property division following divorce and accordingly endeavour to apply the
1973 Act regime, Hyman and Radmacher included.88 In other cases, where a foreign
court has granted the divorce, the English courts may still be able to grant finan
cial relief under Part III of the Matrimonial and Family Proceedings Act 1984.89
Fear of the contract alone (possibly wrongly) being enforced to the neglect of the
1973 Act remedies may therefore be no worse a prospect than that of a foreign
court misclassifying England and Wales as having a separate property regime'
and so granting no relief at all.
However, there are domestic situations in which contract will matter. Consider a
situation akin to that in Souhbury v Souhbury?0 in which the parties conclude a con
tract for a will; the promisor then dies without having executed the promised will,
or the will is revoked: can the promisee then sue on the contract against the execu
tors of the estate? Or consider an agreement which includes a promise to transfer
land. If made in writing, that agreement may constitute an estate contract creating
an equitable interest in the property which may be protected by appropriate entry on
the land register.91 Suppose then that one or other party is declared bankrupt. Should
the promisor go bankrupt, the promisee would be anxious to assert the estate con
tract to preserve the property in question. Should the promisee go bankrupt, his or
her trustee in bankruptcy would be equally anxious to assert that claim.92
But there is nothing peculiar here about contract. The enforcement of a pre
nuptial contract is not obviously any more deleterious to the position of a spouse
reluctant (or unable) to invoke the remedial jurisdiction of the matrimonial courts
(even for a mere decree of judicial separation),93 than is an express declaration of
trust limiting or entirely depriving that spouse of any beneficial share in the
matrimonial home - or one (on reflection) over-generously conferring an interest
on a spouse who made no financial contribution to its acquisition. Outside the
matrimonial context, no court can modify the outcomes dictated by the laws of
property and express trust94 and spouses have to make do with the consequences.
Why should the prospect of enforceable contracts be any more concerning?
86 ibid at [152], [158].

87 [2010] UKSC 42 at [128].
88 Eg the expected response of the Spanish court in Moore v Moore [2007] EWCA Civ 361.
89 Agbaje vAgbaje [2010] UKSC 13. At the time of writing, the Court of Appeal is due to decide an
appeal in Traversa v Freddi [2009] EWHC 3346 which may determine this issue.
90 [2007] EWCA Civ 969.
91 See K. Gray and S. Gray, Elements of Land Law (Oxford: OUP, 5th ed, 2009) ch 8.1.
92 I am grateful to Lizzie Cooke for discussion of this point. See also Law Commission, n 4. above at
para 3.67-3.71.
93 Cf Lady Hale at [2010] UKSC 42 at [159]. Stephen Cretney regarded this as a somewhat unreal
concern 15 years ago: Cretney (1996), n 2. above, 272.
94 Goodman v Gallant [1986] Ch 106.
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Joanna Miles
WHAT IS LEFT OF MARRIAGE TODAY?
Lady Hale closed her judgment with the declaration that 'Marriage still counts for
something in the law of this country and long may it continue to do so'.95 But had
the majority suggested otherwise? True, Mr Granatino was largely confined to an
award comparable to that which an unmarried parent might have expected in a
'big money' case under Schedule 1 to the Children Act 1989. But not entirely: his
former wife had also paid off ?700,000 of his debts. The outcome in Radmacher is
not so very different from that approved by Lady Hale herself in MacLeod, though
the non-working wife had received substantial capital sums already. Lady Hale
was concerned that Radmacher now allows spouses to disapply the irreducible
minimum of marriage: the duty of mutual support and spouses' entitlement to
equal esteem in their different roles.96 But this prompts the question: what features
of marriage should contract not be able to reach? And it is this question with
which Part 7 of the Law Commission's consultation paper is concerned.
It may be thought slightly peculiar that an assessment of English law's valua
tion of marriage should focus principally on obligations that arise on its dissolu
tion. There are many distinctive public law consequences of marriage (some
advantageous, others less so) which spouses cannot modify by contract: their sta
tus as liable relatives in social security law and as connected persons in various tax
and insolvency contexts; their entitlement to certain tax allowances, special pro
tection on insolvency and in the immigration and nationality context; their
(dubious) immunity from prosecution for conspiracy and other special protec
tions in the criminal justice sphere. Nor can several unique or privileged private
law consequences of marriage be qualified by contract: statutory home rights;
eligibility to apply for remedies in cases of domestic violence and for family pro
vision on the death of one spouse - in both contexts, remedies that are more gen
erous to spouse-applicants than to cohabitants; and, still guaranteed by Hyman,97
access to the matrimonial courts and (potentially) their financial remedies, not
withstanding any agreement - remedies not offered to cohabitants at all98 On this
evidence, it seems premature to administer the last rites for marriage.
Does Radmacher deliver a devastating blow? We may start by noting that Eng
lish law does not create any community of property or joint ownership of assets
during marriage, and the (very loose) deferred community that may arise on
divorce through the equal sharing principle is only a recent judicial innovation.
That English law came late to the principle of equality on divorce does not dimin
ish its importance. But no European jurisdiction that has any form of sharing on
divorce (or, in many jurisdictions, during marriage and on death) denies spouses
the right to disapply that regime by agreement. As the Law Commission points
out, the very diversity of regimes across Europe suggests that no one scheme of
property sharing is self-evidently more fair than any other: so why not allow
95 [2010] UKSC 42 at [195].

96 ifoVf at [132].
97 Pending any reform introducing qualifying nuptial agreements': Law Commission, n 4. above.
98 See generally on issues referred to in this paragraph, N. Lowe and G. Douglas, Bromley's Family
Law (Oxford: OUP, 10th ed, 2006) ch 3.
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spouses to select the level and extent of sharing, if any, that suits them best?"
There may often be good reason for one or both parties to wish to marry without
in consequence merging their economic futures completely Without reliable pre
nuptial agreements, avoiding marriage entirely is the only way of reliably avoid
ing the equal sharing principle. It is interesting to note that Lady Hale is more
sanguine about the disapplication of equal sharing than she is about the removal
of liability to meet need,100 perhaps because the assets in Radmacher were all
derived from Ms Radmacher s family rather than accumulated by joint and equal
(if qualitatively different) endeavour during a paradigm traditional marriage. Of
course, excluding equal sharing, while normatively significant, has little practical
impact in the vast majority of cases, where relief is based on need.
So the character of marriage all boils down to the obligation to provide for
needs. Indeed, while many European and other jurisdictions afford considerable
freedom to parties to determine the extent to which they will share property,
ability to contract out of need-based provision on divorce is considerably more
circumscribed, if available at all.101 Although the English matrimonial courts have
long been concerned that an ex-spouse should not be able to cast the other on to
the state,102 former spouses are not liable relatives in social security law and, as
Lady Hale observes, the private law obligation to maintain is no longer life
long.103 So there are limits to the obligation, but what are they? What is the nature
and scope of the former spouses obligation to meet the others need, bearing in
mind that the mere existence of a need in one party and the other party having the
wherewithal to meet it does not ipso facto mean that payment should be
ordered?104 While German law has a very clear framework for regulating
needs-based liability and agreements that purport to limit it,105 this issue remains
under-theorised and incoherent in English law.106 Some of the Law Commissions
consultation questions call for careful attention to be given to this issue, at least in
the context of cases involving a qualifying nuptial agreement. Should a bare
minimum, non-excludable needs-based obligation arise at the point at which a
spouse is rendered dependent on state benefits, a little way above it (which is per
haps what the Courts in Radmacher mean by real need', addressed below), or rather
more comfortably above that point (reasonable requirements' or need generously
assessed', plus compensation, also addressed below)?107
99 Law Commission, n 4. above para 4.15 and 5.55.

100 ibid at [US].
101 Law Commission, n 4. above Part 4; for detailed national reports, see chapters inj. Scherpe (ed),
Marital Agreements and Private Autonomy in Comparative Perspective (Oxford: Hart, 2011,
forthcoming).
102 This was one of the concerns in Hyman n 6 above; in Radmacher, see Lady Hale, at [190].
103 ibid at [187].
104 SRJ v DWJ [1999] 3 FCR 153,160, per Hale J (as she then was); North v North [2007] EWCA Civ
760, [2007] 2 FCR 601 at [32] per Thorpe LJ, cf the outcome in that case.
105 See A. Dutta, 'Marital Agreements in Germany: Beyond Freedom of Contract and Judicial
Review' in Scherpe (ed), n 101 above, andj. Scherpe,'Matrimonial Causes for Concern? A com
parative analysis of Miller v Miller; McFarlane v McFarlane' (2007) 18 Kings LawJournal 348.
106 For discussion, see S. Harris-Short and J. Miles, Family Law: Text, Cases, and Materials (Oxford:
OUP,2nded, 2011)7.5.2.
107 Law Commission, n 4. above para 7.14 and 7.23-7.28, 7.58-7.64, and 7.48-7.57 respectively.
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Joanna Miles
The Court of Appeal in Radmacher was prepared to allow an agreement to pre

clude relief even in a situation of real need'. But this was a step too far for the
majority in the Supreme Court, for whom relief of real need' appears to be the
irreducible minimum.108 So, under the current law, spouses cannot displace
needs-based provision entirely but they can reduce its scope. If so, pre-nuptial
agreements may be relevant outside the big money arena. However, there was
no evidence to suggest that Mr Granatino would be unable to provide for himself,
whether by virtue of his parenting or other incapacitating factors109 once the girls
were independent and so, for the majority, that core obligation did not bite on
the facts.
But matters are rather slippery at this point. What is real need'? Radmacher does
not tell us (and the Law Commission offers no definition, inviting responses on
this issue),110 but it must be something more limited than the matrimonial courts'
familiar reasonable requirements' concept, whereby spouses' needs - certainly
after a fairly long marriage and where resources permit - may properly be mea
sured, and even'generously assessed', by reference to the standard of living enjoyed
during marriage.111 Quite why need should be measured in that way at all in the
normal case is unclear, certainly in the absence of any serious argument based on
the compensation principle, which will generally be subsumed within a generous
needs-based award.112 Absent that extra ingredient, provision for reasonable
requirements' need may best be regarded as reflecting an entitlement to a form of
continued sharing that is accrued over longer marriages, reflecting the life and
commitment that the spouses had had together. If so, there is no justification for
such relief being granted where the parties have specifically agreed to forgo any
claims against each other.
Lady Hale departed from the majority by seeking to protect a larger 'core',
apparently one which encompasses needs' arising from what may perhaps be
called 'lifestyle choices'.113 On that basis, Mr Granatino should have been allowed
to keep the home acquired for him and the girls for life, in part (it seems) to give
the girls a long-term base.114 But, with respect, the argument here is difficult to
follow. Lady Hale discusses an (entirely uncontroversial) hypothetical case: a par
ent who 'has irredeemably compromised her position in the labour market as a
result of her caring responsibilities' who is accordingly entitled to at least some
provision for her future needs, even after the children have grown up'. But she
then quickly moves on to conclude that such provision should be made for Mr
Granatino, apparently on the basis that his change of career was supported by Mrs
Radmacher and benefitted the family, despite noting that he probably would not
need ongoing support because of his past parenting.115 The idea of generous
needs-based relief absent any actual unmet need is problematic, and can only be
108 ibid at [81] and [118].

109 iWat[119].
110 Law Commission, n 4 above para 7.65(5) and preceding discussion from para 7.58.
111 See the useful discussion by the Law Commission, ibid para 2.26-2.33.
112 ibid para 2.56-2.58.
113 See the range of cases discussed, ibid at [188].
114 iât[191]-[194].
115 ito<fat[193]-[194].
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Extending the Confusion About Bayes
understood either as a form of sharing (of the sort described above) or as an

instance of compensation,116 a line of argument that was rejected by the majority
on the basis that his decision to move to academia was not motivated by the
family's needs but was simply Mr Granatino's own choice.117
What is clear is that this issue will provide fertile ground for argument in
future cases, as spouses whose agreements fall within the majority's principle in
favour of upholding pre-nuptial agreements, at least to the extent of precluding
equal sharing, seek to maximise their residual claim that need- or compensation
based provision would be 'fair'. Determining, as a matter of principle, how broad
such residual claims should be will be a key consideration for the Law Commis
sion as it deliberates on its consultation responses. Indeed, the Law Commission
will need to decide whether to adopt that model of reform at all, or instead to base
the court's power to set an agreement aside on some broader basis, such as signifi
cant injustice'.118 In the meantime, whatever its scope may be, the continued avail
ability of relief on need - or compensation-based grounds - despite an
agreement, serves to ensure that marriage does remain distinct from cohabitation.
Marriage is not dead. And there was no need on the facts of this case to make
further provision for Mr Granatino in order to secure its continued vitality.
Extending the Confusion About Bayes
Bernard Robertson*, G. A. Vignaux** and Charles E. H. Berger***
In RvT [2010] EWCA Crim 2439, [2011] 1 Cr App Rep 85, the Court of Appeal indicated that
'mathematical formulae', such as likelihood ratios, should not be used by forensic scientists to
analyse data where firm statistical evidence did not exist. Unfortunately, when considering the
forensic scientists evidence, the judgment consistently commits a basic logical error, the 'transpo
sition of the conditional' which indicates that the Bayesian argument has not been understood
and extends the confusion surrounding it. The judgment also fails to distinguish between the
validity of the relationships in a formula and the precision of the data. We explain why the Baye
sian method is the correct logical method for analysing forensic scientific evidence, how it works
and why 'mathematical formulae' can be useful even where firm statistical data is lacking.
"The probability that an animal with four legs is a cow is not the probability that a
cow has four legs."
At the scene of a crime, a footwear mark is found. A suspects shoes are examined.
They are of the same brand as the footwear that left the mark and one shoe has
116 Lady Hale principally refers to need' in this section of her judgment, but does also talk about
compensating' the hypothetical parent, ibid at [193].
117 ibid at [121].
118 For the full range of options on offer, see Law Commission, n 4. above para 8.19.
*Barrister, Wellington.
**Victoria University of Wellington.
***Netherlands Forensic Institute.
A A A ? 2011 The Authors. The Modern Law Review ? 2011 The Modern Law Review Limited.
444 (2011) 74(3) MLR 430-455

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Miles Joanna-MarriageDivorceSupreme-2011

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Marriage and Divorce in the Supreme Court and the Law Commission: for Love or

Stable URL: https://www.jstor.org/stable/20869078

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Marriage and Divorce in the Supreme Court and the Law

The Supreme Courts decision in Radmacher v Granatino1 (Radmacher) marks an

THE BACKGROUND TO RADMACHER

"Trinity College, Cambridge.

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Lords' decision on separation agreements (those concluded between spouses at the

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17 RvJackson [1891] 1 QB 671; Rv Reid [1973] QB 299.

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THE FACTS OF RADMACHER AND THE EARLIER DECISIONS

The German wife, Ms Radmacher, and French husband, Mr Granatino, were

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award by one-fifth to ?100,000 per annum, capitalised as part of a healthy lump

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The Supreme Court decision in Radmacher. what is the law on marital

38 [2010] UKSC 42 at [52].

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57 [2010] UKSC 42 at [107].

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and so demanded a flexible rather than rule-bound response,66 but nevertheless

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IN WHAT SENSE, IF ANY, ARE PRE-NUPTIAL AGREEMENTS

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86 ibid at [152], [158].

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WHAT IS LEFT OF MARRIAGE TODAY?

95 [2010] UKSC 42 at [195].

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99 Law Commission, n 4. above para 4.15 and 5.55.

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The Court of Appeal in Radmacher was prepared to allow an agreement to pre

108 ibid at [81] and [118].

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understood either as a form of sharing (of the sort described above) or as an

Extending the Confusion About Bayes

Bernard Robertson*, G. A. Vignaux** and Charles E. H. Berger***

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