Marriage and Divorce in the Supreme Court and the Law Commission: for Love or Money?
| Published date | 01 May 2011 |
| Date | 01 May 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00854.x |
| Author | Joanna Miles |
CASES
Marriage and Divorce in the Supreme Court and the Law
Commission:forLoveorMoney?
Joanna Miles
n
The case note considers the impact of the Supreme Court decision in Radmacher vGranatino
regarding pre-nuptial and other classes of nuptial agreement, together with recent proposals of
the Law Commission for reformof the law relating to marital property agreements generally. It
explores in particularthe question of what, if any,core obligationsof marriage cannot ^ or should
not ^ be excludable by agreement.
INTRODUCTION
The Supreme Court’s decision in Radmacher vGranatino
1
(Radmacher)marksan
important staging post in the evolution of English law’s 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 ‘beginni ng of the end for marriage’
3
and the media o¡eringvarying assess-
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 curre nt law.
But claims that the decision desecratesmarriage’s distinctive legalstatus, leaving it little
di¡erent 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 equiva-
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
n
Trinity College,Cambridge.
1[2010] UKSC 42.
2S.Cretney,‘FromStatus to Contract?’ in F. Rose(ed), Consensusad idem:Essays in the Lawof Contract
in Honourof GuenterTreitel (London: Sweet and Maxwell,1996).
3J.Herri ng,‘Family/Divorcespecialist legal update’(2010) 160 NLJ 1551.
4Law Commission, Marital PropertyAgreements, Law Com CP 198 (2011) at http://www.lawcom.
gov.uk/marital_property.htm (last visited 12 January 2011).
5And see [2010] UKSC 42 at[131].
r2011The Author.The Modern Law Review r2011 The ModernLaw Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(3) 430^455
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