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Radmacher V Granatino Notes

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Radmacher v Granatino [2010] UKSC 42 Supreme Court Facts W and H got married in a foreign country, but before doing so signed a pre nuptial agreement. It stated that should they separate, H would not claim anything from W's vast wealth. During their marriage, H gave up his wealthy career and pursued a DPhil in Oxford. When they separated, H claimed ancillary relief. Held Lord Phillips

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The parties cannot by agreement oust the jurisidiction of the court - s.34 any agreement that does this is void o But it must give appropriate weight to such an agreement.

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A court when considering the grant of ancillary relief is not obliged to give effect to nuptial agreements - whether they are ante-nuptial or post-nuptial. o The parties cannot, by agreement, oust the jurisdiction of the court.
? The court must, however, give appropriate weight to such an agreement

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We wholeheartedly endorse the conclusion of the Board in Maclean v M that the old rule that agreements providing for future separation are contrary to public policy is obsolete and should be swept away o But this should not be restricted to post- nuptial agreements. If parties who have made such an agreement, whether ante- nuptial or post-nuptial, then decide to live apart, we can see no reason why they should not be entitled to enforce their agreement

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Is there a material distinction between ante-nuptial and post-nuptial agreements? Wilson LJ was not persuaded that there is (paras 125-126) and nor are we o In Maclean, the Board stated that there is an enormous difference in principle and in practice between an agreement providing for a present state of affairs which has developed between a married couple
? and an agreement made before the parties have committed themselves to the rights and responsibilities of the married state purporting to govern what may happen in an uncertain and unhoped for future. o This is true, but does not apply fully to a post-nuptial agreement entered into at the start of married life, for that also purports to govern what may happen in an uncertain and unhoped for future o They also focused on duress
? But duress can be applied both before and after the marriage. The same principle applies in either case. In either case the duress will lead to the agreement carrying no, or less, weight

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It is true that the circumstances surrounding the agreement may be very different dependent on the stage of the couple's life together at which it is concluded, o but it is not right to proceed on the premise that there will always be a significant difference between an ante- and a post-nuptial agreement.
? Some couples do not get married until they have lived together and had children o Whether they have contractual status is a red herring - regardless of whether one or both are contracts,
? the ancillary relief court should apply the same principles when considering ante-nuptial agreements as it applies to post-nuptial agreements

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