Ante-nuptial contracts after Radmacher: an impermissible gloss?

Abstract

This article follows on from my previous article entitled ‘Pre-Nuptial Contracts in English Law: Capricious Outcomes or Legislative Clarification?’ which, after examining the decisions in MacLeod ([2009] 1 FLR 64) and the Court of Appeal in Radmacher v Granatino (2009 2 FLR 1181), concluded that the unpredictability of the law in this area required legislative clarification. The present article discusses the Radmacher appeal to the Supreme Court in the light of these previous comments. The majority decision in this case, which in effect shifts the onus of proof in such contracts on to the party who is (usually) weaker economically, constitutes a creative step for the judiciary, diminishing to some extent the distinction in English and Welsh law between the duties of support of married parties on breakdown of their relationship as compared with that of cohabiting partners. The article submits that this controversial and potentially divisive step requires legislation sanction, especially in view of the fact that the Law Commission is already engaged in investigating possible reform and concludes, with respect, that constitutionally and democratically, Lady Hale's dissenting judgment is correct.