Radmacher v Granatino (Rev 1)

Lord Justice Thorpe:

Introduction

This appeal requires consideration of two separate but inter-related areas of law and policy, one in the domestic and the other in the European context, relating to contracts that provide for the property consequences of divorce. In the domestic context this court has the advantage, denied to the trial judge, of the recent decision of the Privy Council in MacLeod v MacLeod [2009] 1 All ER 851 which, although deciding issues arising under a contract executed by the parties shortly before their separation and divorce, also considered in passing the current legal status of ante-nuptial contracts that provide for the financial consequences of a possible future divorce.

The European Dimension

I prefer to consider first the European context, which was unnecessary for the Privy Council to consider in MacLeod , and which was not expressly considered by the Judge below. I do so because this appeal, to whose facts I will refer later, involves the marriage of a French citizen and a German citizen celebrated in both London and Switzerland. Subsequently the couple co-habited in London and New York. Thus the case has all the hallmarks of internationality.

An aim of the European Union is to provide for its citizens both mobility and a common area of justice. European law did not much affect families prior to 1 st March 2003. Before then there were only the provisions Brussels I relating to maintenance. The commencement date of 1 st March 2003 given to Regulation Brussels II introduced jurisdictional rules for divorce and parental responsibilities respecting children of married parents throughout all but one of the then fourteen member states.

This interim measure was swiftly enlarged into Brussels IIBi, or Revised with its commencement date of 1 st March 2005. These regulations did not deal with maintenance, the territory of Brussels I, or with the property consequences of divorce (see recitals 8 and 11 of Brussels II Revised).

In this uncharted territory, the search for harmonisation clearly poses great difficulty, given an enlarged Europe where 26 member states would be invited to the negotiating table. Whilst the civil law jurisdictions of Europe generally employ notarised marital property regimes to regulate both the property consequences of marriage and divorce, the common law jurisdictions attach no property consequences to marriage and rely on a very wide judicial discretion to fix the property consequences of divorce.

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