Joan Smith: Romance with a dose of realism

Yesterday's ruling on pre-nuptial agreements treats couples on the threshold of marriage as responsible adults who have considered the possibility that their relationship won't last

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It was a ground-breaking decision. Yesterday at the Supreme Court in London, marriage in this country finally became modern. With only one dissenting voice, nine judges ruled that the prenuptial agreement made by a German heiress and her French ex-husband was legally binding, a decision that makes such agreements enforceable for the first time.

Prenuptial agreements are common in some European countries, but they've been resisted here for much too long. They're an essential step in the long and painfully slow process to modernise relationships between adults, which still has some way to go. We've already got fairer divorce settlements for wives and civil partnerships for gay couples, but no gay marriage as yet and heterosexuals still aren't allowed to have civil partnerships.

Even so, the Supreme Court decision on prenuptial agreements is a great leap forwards, although few divorcing couples find themselves battling over the kind of assets at stake in yesterday's case.

Katrin Radmacher, heiress to a German paper company and said to be one of the richest women in Europe, signed the agreement before her wedding in 1998 to protect her £106m fortune.

It's more usual for men to be the wealthy partner in a marriage and recent developments in divorce law have recognised that reality, insisting that the contribution of non-working wives to building up assets should be taken into account. This latest case isn't about giving more rights to women – although there are likely to be some sour comments along those lines – and it isn't significant only for wealthy celebrities. Sports stars and pop singers often display a romantic attachment to marriage which is matched only by the acrimony with which they separate and divorce; the glamour model Katie Price is currently embroiled in a libel case brought by her ex-husband, the singer Peter Andre, for instance.

But modern marriage is an imperfect state for people of all backgrounds, having its origins in a period when divorce was impossible except for those wealthy and powerful enough to secure an act of parliament dissolving their union.

The Church of England wedding ceremony is based on a form of words that dates back to 1662 and even the 2001 Anglican marriage service talks about staying together "till death us do part". Lifelong monogamy remains an aspiration for many people, even though they know that divorce is widespread and too many couples go into marriage blithely assuming that divorce won't happen to them. When that assumption turns out to be wrong, they feel shame and a sense of failure which makes a civilised separation even harder to achieve.

Yesterday's judgement is a welcome step towards bringing the law and popular assumptions closer to real life; at long last the state has formally recognised the likelihood of marriage breakdown and offered couples a legal mechanism which they can use to prepare for that eventuality.

The extent of the change is breathtaking in a culture that still promotes expensive, starry-eyed wedding preparations. There are endless magazines and websites offering advice on every aspect of getting married but couples are offered little or no encouragement to consider how they will behave if something goes awry.

In a culture where adult relationships take many forms – straight, gay, married, cohabiting and now civil partnerships – it's an amazing fact that relatives and friends encourage couples to marry in a spirit of lunatic optimism; it's regarded as bad manners or downright unromantic even to suggest there might be a moment when one or other party no longer wishes to remain together.

In a statement issued yesterday, Radmacher challenged this notion, arguing that she regarded a prenuptial agreement as a means of ensuring that someone was marrying her for love. "We made a promise to each other that if anything went wrong between us, both of us would walk away without making financial claims on each other," she said. "The promise made to me was broken."

She added she hoped that her victory would mean that no one else would have to go through a protracted court case. Radmacher's ex-husband, former investment banker Nicolas Granatino, hasn't ended up penniless, although he won't receive the £5.85m awarded to him in 2008 by a High Court judge. That sum was cut a year later to £1m in lieu of maintenance, along with a £2.5m fund for a house which is to be returned to Radmacher when their younger daughter, now seven, reaches the age of 22. Radmacher had earlier agreed to pay off her ex-husband's debts of £700,000.

Granatino appealed against the reduction, arguing that the prenuptial agreement should not be upheld because he signed it without realising the extent of his future wife's wealth. The Supreme Court ruled against him, arguing that "it will be natural to infer that parties entering into agreements will intend that effect to be given to them".

This is dry legal language, but it treats couples on the threshold of marriage as adults who have considered the possibility their relationship won't last and worked out a way of dealing with it.

The courts will still be able to waive any contract which is deemed to be unfair to the children born within a particular marriage, but one of the advantages of a prenuptial agreement is the context in which it is made. Couples get married when they love each other and are much more likely to be fair and generous about dividing their assets than two individuals who have accumulated years of hurt and grievances. Divorce settlements are often about punishing the other partner for bad behaviour or infidelity – an attitude that used to be actively encouraged by the law – and arguments about money and property are often conducted in a spirit of recrimination and bitterness.

In that sense, a legally-binding prenuptial agreement is a protection against a spouse's worst behaviour, entered into at a moment when they wished to be seen at their best.

It is also a recognition that break-ups are normal, not something that people need feel ashamed about. Many of us live in serial relationships and until now the state has been reluctant to acknowledge that fact, allowing divorce reform reluctantly and listening to politicians (like David Cameron) who have an idealised view of the married state. Yesterday's Supreme Court decision was no doubt a relief to Radmacher, but it also introduces a note of realism into the discussion about how responsible adults come together, separate and manage conflict.

www.politicalblonde.com

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