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Mr Granantino's appeal against the Court of Appeal's decision in Radmacher v Granantino [2009] was heard by the Supreme Court in March 2010. The decision, expected this summer, is eagerly awaited by divorce lawyers in the hope that it will provide more detailed guidance on the enforceability of pre-nups.

Briefly, the facts are as follows: the parties were married for 8 years and by the time of the divorce there were 2 children under 11 years. The parties had signed a pre-nup in Germany stating that neither would bring financial claims against the other on divorce. In 2006 Mrs Radmacher brought divorce proceedings in this country as she was now living here with the children. The husband responded by making a claim against her for financial support; she was worth in excess of £100 million, almost entirely received by way of gift from her family.

The background to the pre-nup is interesting. At the first instance hearing in 2008 Mrs Radmacher said that she needed to know that Mr Granantino wanted to marry her for love not money and a prenup was the easiest way to prove it. She claimed she would not have married without one. The husband's story was very different; she had told him that she would be disinherited if she did not sign the agreement and that it was being forced on her by her father. The husband claimed that he signed the agreement to prevent a rift in her family.

Three years prior to the divorce the husband had given up his banking career and his £500,000 salary and gone back to University to study Biology. By the time of the divorce he still had no income and no significant capital.

It was first heard by the High Court, which found on the evidence that the parties had been deeply in love and keen to marry. However, there was clear evidence that the pre-nup had been instigated by the wife's family. The notary who drafted it worked for them and the wife's father was the first person to see the draft. It was written in German and the husband didn't speak German. The wife said she translated it for the husband but he denied this. He said he shouldn't be held to an agreement when he didn't understand its consequences. The wife argued that if he was foolish enough to sign something in a foreign language which he didn't understand he should be held to it - maybe not her strongest argument.

The court found the following:
• The wife had not made any disclosure of her financial circumstances and the husband didn't fully know what he was giving up by signing it
• Although he was a man of commerce he didn't fully understand the legal consequences of what he was signing and had not received any independent legal advice
• There was no provision in the event of children
• The husband had a real need for financial provision by the wife

The court decided that it was not obliged to follow the agreement due to these procedural flaws but concluded that it would limit what it would normally have awarded to the husband in light of the fact that the agreement would have been binding in Germany or France. The husband received £5.5 million of which half was for a house in England where the children could stay when he visited for contact.

The wife appealed to the Court of Appeal on the basis that the High Court had not given sufficient weight to the pre-nup, there was no evidence of duress, misrepresentation or lack of opportunity to take legal advice and it would have been binding in the parties' own countries. The Law Lords allowed her appeal and reduced the husband's award to £1 million, which was to revert to the wife on the youngest child reaching 22.

The Court of Appeal was satisfied that Mr Granantino knew what he was signing, knew approximately the level of his wife's wealth and had chosen not to take independent legal advice,

In his judgement Lord Justice Thorpe stated "This is a legitimate exercise of the very wide discretion that is conferred on the judges to achieve fairness between the parties". Lord Justice Rix said that "while the public interest in a fair and just exercise of the court's discretion remains, there is fairness and justice too in a proper appreciation of party autonomy and there are dangers in overly paternalistic or patronising attitudes or in an insufficiently international outlook."

It will be interesting to compare the Supreme Court's decision with the Law Commission's consultation paper examining the status and enforceability of pre-nups, also due to be published this summer. There have been calls for legislative recognition of pre-nups ever since the development of more egalitarian principles of financial and property adjustment on divorce starting with the landmark case of White v White in 2000.

Whether Parliament will legislate remains to be seen but there is increasing pressure from the judiciary, as evidenced by the Court of Appeal decision in Radmacher, to see the United Kingdom brought into line with America, Australia and many European countries who uphold pre-nups. In November 2004 Resolution's Law Reform Committee produced a paper entitled ‘A More Certain Future - Recognition of Pre-Marital Agreements in England and Wales'. It recommended amending the law to make pre-nups legally binding save in cases of significant injustice to either party or any child of the family.

With their focus on marriage breakdown, prenuptial agreements have attracted vociferous condemnation. Do they corrupt the sanctity of marriage and the vow of a lifelong union? Without the right to regulate their own affairs divorcing couples face the lottery of litigation and its associated cost and acrimony (the McCartneys spring to mind). Many may choose not to marry at all. With rights for cohabitants sadly lacking, they risk being ensnared in the tangled web of property and trust law which separating unmarried couples must currently deal with.

Some divorce lawyers argue that Parliament should focus its attention on current divorce law and, in particular, s 25 of the Matrimonial Causes Act, which lists the factors the courts must take into account when trying to achieve financial fairness between the parties on divorce.

Whatever the summer holds and with the courts now giving more weight to prenups, we consider it essential that those clients investigating wealth-protection mechanisms prior to marriage are advised on the benefits of a pre-nup. On a cost-benefit analysis, the advantages of a pre-nup over potential court proceedings are significant.

Procedurally, both parties should take independent legal advice on the terms of the agreement and should attach a summary of their respective financial positions as at the date of the pre-nup. They should not be signed later than 28 days before the wedding.

Clients with pre-nups are also advised to enter into a post-nuptial agreement. Following the Privy Council decision in MacLeod v MacLeod [2008], such agreements are now binding providing that they make provision for children of the marriage and do not offend contractual principles.

We have considerable experience in advising clients on both pre-nups and post-nups and would be happy to discuss any queries you may have.

For more information please contact Stephens Scown's family solicitors in Exeter on 01392 210700 or by email to family.exeter@stephens-scown.co.uk