Abstract

The UK Supreme Court decision in Radmacher on 20 October 2010 was always likely to have a significant impact in the international family community. And so it has proven. The decision brings England and Wales much closer to the law and practice of many other countries. It gives much greater confidence to foreign lawyers and their clients that a foreign marital (including premarital) agreement, especially after independent advice, will be upheld on an English divorce.

England will now look more at foreign law to determine the effect the parties intended when entering into a foreign agreement. England will still only apply local law, English law, and not applicable (conflicts of) law, but this is what occurs in many other countries with which England is historically close, even if not the preference of the Euro bureaucrats. The Supreme Court decision does not of course make marital agreements binding in law - only Parliament can do so and probably will in the next four years following the Law Commission proposals expected in January 2011. In the meantime, this is as close to binding as judge made law could provide.

This decision is good for the international family lawyers community and good for international families

The decision in Radmacher was par excellence in an international family: a French husband, a German wife, German inheritances, German pre-marriage agreement binding under both German and French law, choice of law clause, separation of assets in classic community of property regime, awareness in the agreement that other countries may ultimately deal with the divorce, and then the divorce occurring in a country which applied only local law. Apart from the curiosity of the husband being the applicant and the very high level of assets, this was a quite frequent international occurrence.

It is a familiar situation for international family lawyers in many countries. So it was very appropriate case for England’s highest court and the decision is an excellent one to help international families.

In short summary the position now in law in England of marital (including premarital) agreements is set out in paragraph 75 of the judgment namely: “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.

Fairness is the objective of financial provision, capital and income, on divorce in England. Fairness is found in providing for needs and compensation and in sharing the assets. The Supreme Court said that a marital agreement had to be fair both when it was entered into and fair at the time of the subsequent divorce.