EUPillar Katrin Radmacher (formerly Grantino) v Nichola Joseph Jean Jean Granatino [2009] EWCA Civ 649

Summary

The parties were married in London in November 1998, signing ante-nuptial agreement in Germany in August 2008. The husband was French; the wife was German. The parties were divorced in July 2007. They had two children. In spite of the terms of the ante-nuptial agreement, the husband sought ancillary relief, claiming periodical payment and a lump sum. Although the proceedings were not within the scope of the Brussels I, the English court had jurisdiction under English common law. The Court of Appeal held: “3 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 1st March 2003. Before then there were only the provisions Brussels I relating to maintenance. The commencement date of 1st 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. 4 This interim measure was swiftly enlarged into Brussels IIBi, or Revised with its commencement date of 1st 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). 5 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.” [3-5] Regarding the applicable law, Lord Justice Thorpe noted: “51 In my judgment, this approach is necessary to give proper weight to the ante-nuptial contract. Policy considerations fortify my conclusion. Section 25 allows the judges to factor into the discretionary balance considerations that would have been unthinkable in January 1971, the commencement date of this statutory power in its original form. We can take advantage of the flexibility that Section 25 provides to alleviate injustice that would otherwise result from the jurisdictional rules introduced by Brussels II and the widely divergent legal and social traditions of the civil and common law states of Europe. 52 There seems to be no purer route to fairer outcomes. The application of the relevant foreign law does not offer an attractive solution to family lawyers and policy makers in this jurisdiction, given that the obligation would extend to all foreign laws. The gulf between our statute law and Sharia law is wide indeed. Equally the member states of Europe seem unlikely to adopt the doctrine of forum conveniens despite the precedent presented by Article 15 of Brussels II. 53 Thus, pending the report of the Law Commission, in future cases broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties freely entered. This is not to apply foreign law, nor is it to give effect to a contract foreign to English tradition. It is, in my judgment, a legitimate exercise of the very wide discretion that is conferred on the judges to achieve fairness between the parties to the ancillary relief proceedings.” [51-53] The appeal was dismissed by the UK Supreme Court. Granatino v Radmacher [2010] UKSC 42.