Radmacher v Granatino [2010] UKSC 42
Supreme Court confirms that nuptial agreements should carry decisive weight under certain circumstances.
Introduction
In this landmark decision, the Supreme Court ruled that whilst nuptial agreements are not contractually binding in English law, they can still hold significant weight when determining what financial order ought to be granted to a party, following their divorce.
The ruling is the leading authority on how nuptial agreements ought to be considered.
What is a nuptial agreement?
The term “nuptial agreement” is an overarching heading, which includes “ante-nuptial agreements”, which are agreements made prior to marriage, also commonly referred to as pre-nuptial agreements, and “post-nuptial agreement”, which are agreements entered into once already married.
Such agreements will provide an insight into how the couple intended for their assets to be split in the event they divorce.
Historically, such agreements under English Law were considered void on the basis that they offended public policy. However, in 2008 the Privy Council ruled that post nuptial agreements were contracts but that pre-nuptial agreements were not.
Background to the case
The dispute arose from a high-value divorce with substantial family wealth. The wife was a German national, who came from an incredibly wealthy family, whilst the husband was a French national, who had significant earning potential.
Prior to their marriage, the wife’s father required that the couple enter into an ante-nuptial agreement in order to protect their family wealth. He also informed the wife, that it was a pre-requisite in order for her receive further financial support from him.
The agreement was drawn up in Germany, with German notary, and written in German, with German law to be the governing law. This was despite the couple living in the UK at that time, and that the husband’s German was limited. The agreement stated that in the event of divorce, they would each walk away with their own assets, and that the husband could not receive any of the wife’s wealth.
The notary appointed, was someone recommended by the wife’s father, and during the drafting of the agreement, different versions were presented to the wife, who made amendments. It is unclear whether the husband ever saw the draft versions before he signed. In sending over the final version of the agreement, the notary advised the wife that he needed the husband to receive a translated version and that he needed to obtain independent legal advice.
When it came time to signing the agreement, this was done in the office of the notary in Germany. It was during this meeting, that the notary discovered that their instructions had not been followed. They informed the couple that the meeting should be postponed to allow the husband to get legal advice. However, upon being convinced by the parties that they would have no other time to come back to Germany before the wedding, the notary themselves read the agreement in overview in English to the husband and the parties each signed.
During the course of the marriage, the couple welcomed two children and after 8 years subsequently separated. It is worth noting that the ante-nuptial agreement did not contain any provision as to what should happen with their assets in the event that they had children.
Following their divorce, the husband pursued a financial arrangement through the court. The issue for the court at first instance, was to decide what weight/ significance should be given to the ante-nuptial agreement.
The court concluded as follows:
- The agreement is not contractually binding, as such German law is not applicable, and the English courts have jurisdiction. The reference to German law simply indicated that the parties intended to be bound by the agreement.
- The preparation of the agreement was one-sided and was therefore not neutral
- And as the husband did not obtain any independent legal advice, the agreement was unfair
The court of first instance therefore attached very minimal weight to the agreement and awarded the husband £5.560 million, which included £2.5 million to buy a home in London and £2.335 million in a fund to allow the husband to draw an income of £100,000 for life.
The wife appealed this decision on the basis that the first court was wrong to not attach significant weight to the agreement. The husband also cross-appealed on the basis that there was new evidence that had not previously been disclosed to him. In this instance, the Court of Appeal ruled that:
- Although the husband had not received legal advice, they found that he understood clearly the effect of the agreement and he had had the opportunity to take independent advice, but had failed to do so
- Whilst the wife had failed to disclose the full extent of her wealth, the husband knew that the wife had come from substantial wealth and had shown no interest in ascertaining its approximate extent. He also made no suggestion that this would have affected his readiness to enter into the agreement
On this basis, the Court of Appeal did not agree with the first court that no weight should be attached to the agreement. In making this decision, the Court of Appeal ruled that the husband had entered into a valid agreement and had intended to be bound by it.
They therefore changed the terms of the husband’s award. They concluded that the husband ought to receive financial support in line with his role as a father as opposed to that of a former husband. They therefore ruled that the £2.5 million housing fund, should only be available to the husband for the years of his parenting, and that the income fund of £2.335 million should not be a fund for life but should cover his needs until the youngest child turned 22 years old.
The husband sought to appeal this decision.
The Supreme Court’s Decision
The Supreme Court agreed with the Court of Appeal and dismissed the appeal.
They concluded that when determining how much weight ought to be given to these agreements, the following must be considered:
- Did each party enter into the agreement of their own free will?
- Was there any undue influence, pressure, duress, fraud, misrepresentation?
- Were the parties properly informed about the contents of the agreement and any implications?
- For instance, did each party seek independent legal advice?
- Do each party intend for the agreement to be effective?
They also ruled that a nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family.
Why Radmacher v Granatino matters
This decision re-enforced that the court is the ultimate decision maker when making an order for financial arrangement but introduced a clear framework for what the courts will consider when considering if a nuptial agreement will be an influencing factor in that order.
Practical Implications for Clients
- Ensure you understand the contents of the agreement
- Work on the agreement together
- If required, ensure full disclosure of all assets
- If required, ensure each party obtains their own independent legal advice
Practitioner Takeaways
- Seek to determine the intentions of the parties when the agreement was initially made
- Is there evidence of any misrepresentation; fraud; duress?
- Is there any evidence that the parties did not intend to be bound
- Consider whether the agreement was made collaboratively
Conclusion
Radmacher v Granatino provides further clarity on the enforceability of nuptial agreements.
By: Abigail Gledhill
03/11/2025