How to make Marriage - and divorce

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How to make marriage - and divorce - work	Deborah Levy partner and head of matrimonial department at WGS solicitors

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

reprinted from 'the Jewish Chronicle', 10 July 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, Mr Granatino. In July last year, 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 yet 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, some of which are - 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.

Having practised family law for over 25 years and with the law rapidly changing in relation to the recognition of Pre-Nuptial Agreements, I thought it was time to look at the standing of the Jewish Pre-Nuptial Agreement - the Ketubah.

After 25 years as a lawyer, I at last have to consider the Ketubah's legal status

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 Pre-Nup as it has a basic requirement for the husband to state that he commits 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 of the husband and wife co-operating with regard to the giving and receiving of the Get (the Jewish divorce). In the case of N v N (1999) the Court refused 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. Whilst 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. She is also an accredited specialist of Resolution (Substantial Assets and Private Children's Law) and has trained as a Collaborative Family Lawyer.

reprinted from 'the Jewish Chronicle', 10 July 2009