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Contrats de Mariage

By Frances Sieber


Find out what the Supreme Court has clarified in October 2010


Update post Radmacher v Granatino

Bride and Groom



As a result of this case in which in July 2009, the Court of Appeal upheld the German pre nuptial agreement, it is necessary to consider the implications for French people divorcing in England.


Radmacher V Granatino 2009

The facts:

There was a German marriage contract between a German Wife and French Husband, entered into in Germany, with no independent advice being given to the Husband and no financial disclosure. They adopted a matrimonial regime akin to ‘separations des biens’. At the time of the marriage the Husband was a banker and earning good money.

There were two children of the family. The family lived in London so that England was the only jurisdiction for the divorce. Towards the end of the marriage the Husband gave up his lucrative career to study and had decided to remain in the academic field.

The first judgment:

Baron J. awarded the Husband £5 Million of the Wife’s £100,000 Million, although this was more than he would have had under the German marriage contract. Arguments were put forward under the Human Rights legislation.

The Wife’s appeal:

Lord Justice Thorpe reversed Baron J.’s judgment, on the basis that there was a valid PNA and awarded the Husband a housing fund of £2.5 Million to provide housing up to the youngest child attaining the age of 22. The fund then reverts to the Wife. In addition, the Husband was awarded a fund to clear his debts (save for £100,000 incurred by him in legal costs in what was considered a fruitless application) and a Duxbury fund based on the capitalization of his income need of £100,000 per annum.

He was then given a further fund to provide for additional housing in Monaco to provide accommodation for contact visits to his children.

Thorpe L.J was clearly influenced in his judgment by a desire to harmonize laws between European states.

Where does this leave PNA’s?

Up until this case, the view has been firmly held that PNA’s prepared in the Continental way are not applicable in England and will not be followed by the English court because they do not comply with the English concepts of independent advise, financial disclosure and lack of duress.

It is understood that an appeal to the House of Lords is likely, but at the present time it seems that if you are from a country that has a property regime and has marriage contracts as a matter of law, such as France, and enter into one in accordance with the practice of your own country that it may well be applied on a divorce by the English court, whether or not there is independent legal advice or financial disclosure.

It should be emphasised that the position adopted in January 2009 by Baroness Hale, the senior family Judge in the House of Lords, was that PNA’s are ‘void as against public policy’. (She did however in that case give affect to a PNA on the basis that there had been a post-nuptial variation which she said was legally binding). It remains to be seen whether the Court of Appeal judgment will hold should the case go to the House of Lords.

For now, it would be prudent to enter a French marriage contract on the basis that however unfavourable the terms are, the English court could apply it.


Frances Sieber
Head of Family Department,
Pritchard Englefield
14 New Street,
London EC2M 4HE
Telephone 020 7972 9720
Fax 020 7972 9724

Frances is an accredited family lawyer and trained  collaborative lawyer.

Find out what the Supreme Court has clarified in October 2010


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