How to make marriage - and divorce - work

After a landmark legal ruling, pre-nuptial agreements may well mean what they say

By Deborah Levy, July 9, 2009

Last week, Katrin Radmacher won a landmark Court of Appeal case to enforce a pre-nuptial agreement to protect her wealth from claims by her former husband, Nicholas Granatino. Last July, the High Court ordered Ms Radmacher to pay her husband a lump sum in excess of £5.5 million. The Court of Appeal’s decision meant that Mr Granatino’s award was reduced in the light of a pre-nuptial agreement the parties had signed. This groundbreaking decision is a further step towards couples being able to regulate their own financial affairs.

On divorce, the court takes into account a number of factors as laid down in section 25 of the Matrimonial Causes Act 1973, including the age of the parties, length of marriage, needs, contributions and “all the circumstances of the case”. A pre-nuptial agreement falls into the category, “all the circumstances of the case”. The law is such that parties cannot oust the jurisdiction of the court and therefore it will be in the court’s discretion whether, and to what extent, a “Pre-Nup” will be taken into account.

But what of that age-old, traditional Jewish Pre-Nup — the ketubah? Having practised family law for over 25 years and with the law rapidly changing in relation to the recognition of pre-nuptial agreements, I now find myself having, in my professional capacity, to consider the standing of the Jewish Pre-Nup.

The literal translation of ketubah is: “it is written”. The ketubah is the Jewish marriage contract — a legal document originally formulated to protect the bride from financial hardship in the event of divorce or her husband’s death.

The ketubah differs from a modern Pre-Nup in that it has a basic requirement for the husband to commit to provide food, clothing — and marital relations — to his wife, and that he will pay a specified sum of money if he divorces her. A standard UK Pre-Nup usually seeks to limit the financial rights and obligations between the couple whereas the ketubah imposes positive obligations.

For the past 17 years, the Office of the Chief Rabbi has offered a pre-nuptial agreement to couples marrying under its auspices to address the issue, in the event of divorce, of the husband and wife co-operating with regard to the giving and receiving of the get — the Jewish bill of divorce. In the case of N v N (1999) the court refused to make an order compelling the husband to specifically perform the pre-nuptial agreement to give the wife a get. Given the decision in Radmacher, and the fact that the Law Commission is currently looking into the enforceability of Pre-Nups, it will be interesting to see how various provisions in a Pre-Nup, Jewish or otherwise may be upheld in the future.

Being somewhat of an old-fashioned romantic, I much prefer the concept of the ketubah whereby the husband acknowledges his moral responsibility to his wife, although as far as the financial obligation is concerned this is, according to Jewish law a one off payment. While Mrs Radmacher justified the reason for entering into the Pre-Nup by saying: “The agreement gave me reassurance that Nicholas was marrying me because he loved me…” the cynic inside me questions why anyone would wish to enter into a Pre-Nup as a pre-condition of marriage. The lawyer, however, knows full well why this should be so.

Deborah Levy is a member of the Solicitors Regulation Authority’s Family Law Accreditation Scheme and an accredited specialist of Resolution (Substantial Assets and Private Children’s Law)

Last updated: 4:56pm, July 9 2009