Law Commission Marital Property Agreements

The Law Commission for England and Wales today published its report on matrimonial property, needs and agreements. The Commission has set out its three main objectives: first, the introduction of a bill that makes legally binding qualified marriage contracts provided certain conditions and guarantees are met; Second, recommend that the Family Justice Council develop relevant guidance on “financial needs” to provide couples with legal knowledge in order to reach an agreement on finance and property without litigation; and third, recommend that the government commission a long-term study to assess whether a non-legal spanging formula (such as the one used in Canada) would work in England and Wales. The Bridal Agreements Act also expands the court`s existing power to amend maintenance contracts, so that this includes pre-marital agreements for the first time. This is evident from the Radmacher/Granatino Supreme Court`s submission that the rule of government law, which overturned these agreements, should no longer apply. Since these remarks were not absolutely necessary for the Supreme Court`s decision in this case, our bill, if it still exists, abolishes this rule of public policy. It also specifies that the provisions relating to marriage contracts to limit the Tribunal`s jurisdiction over financial orders will remain in force, unless the agreement constitutes an NQ. Non-marital propertyWe have not made recommendations for non-marital property. After consultation, it became clear that opinions differed considerably on the form of the reform. There was no clear opinion of the majority among our counselors on important issues such as whether the family home should one day be considered non-marital property, regardless of its source, and whether the property acquired during the common life, which led to marriage or a life partnership, should be considered marital or non-marital property. We felt that any legislative reform of the non-judicial property law would therefore be unacceptably controversial and that the use of an NQ would provide the best alternative to legislative reform. How non-jurisdictional property should be dealt with by the court in the event of divorce will only be relevant if it is not necessary to meet the needs; Couples for whom this will be relevant will also be those for whom an NAC will be a real possibility. We believe that the best approach for these couples is to create their own rules for non-marital real estate in an NQ, subject to the higher requirement of necessity. This could include provisions on sensitive issues of the status of non-marital property, which evolve over time, where investments are made by one or both spouses or are used by the family, as well as the other “problematic areas” mentioned above.

We support the more desirable approach to justice in non-jurisdictional ownership, the two approaches that have developed. We believe that the best method is the method that identifies non-marriage property, despises it and shares the rest equally (subject to the needs of the parties that are satisfied), as in the case of Jones v Jones, for example. 4 This is to be attributed to the broader approach that divides the couple`s wealth to proportions that the court deems fair given the existence of non-judgmental property (in the case of Robson/Robson 5).