THE LAW COMMISSION REPORT – MATRIMONIAL PROPERTY, NEEDS AND AGREEMENTSMalcolm Martin Partner, Family Department – Direct Line 020 8971 1030 Switchboard: 020 8971 1020 email: [email protected]
The day that family lawyers have been waiting for a long time has finally arrived. The Law Commission have finally published their report on the future of financial orders on divorce and dissolution in particular relating to the property needs and agreements of parties to the marriage.
The report itself contains 231 pages of detail and indeed the separate executive summary contains 14 pages! The Law Commission have concluded that the underlying law relating to responsibilities of former spouses to meet each other’s “financial needs” is not in need of statutory reform. However they do recommend that the meaning of “financial needs” be clarified and they envisage that a formula may be developed (in the form of non-statutory guidance) which would give a range of outcomes within which the separating couple might negotiate.
The Law Commission recognised that divorce and dissolution of civil partnerships almost invariably have far reaching financial consequences and for many people this can be a time of hardship, as well as stress. Every lawyer practising in this area knows that the unravelling of jointly-made arrangements and commitments, and the sharing of property, debt and responsibility, can be extremely difficult. Anything that can assist this will be welcome.
Very interestingly the Law Commission recognise the practice of the courts in sometimes keeping pre-acquired, gifted and inherited property out of divorce settlements, but they have not recommended that there be statutory rules. This will leave the courts with discretion. However, the focus will always be on ensuring basic needs are met, such as housing for the children, which may mean that inherited or gifted assets have to be included.
Pre and post-nuptial agreements have been a feature of the law of England and Wales for many years. Recent developments, following the case of Radmacher –v- Granatino, have meant that such agreements are much more likely to be recognised and enforced but court approval is still required as the only way to achieve legal finality is to ask the courts to make orders that reflect the terms of the agreement.
The Law Commission recommends that spouses and engaged couples should be able to make contractually enforceable agreements but as a safeguard those agreements cannot relate to future needs for housing, childcare, income or any other aspects of “financial needs”.
The Law Commission are recommending to Parliament that these “qualifying nuptial agreements” be recognised by statute. They set out five formalities:-
1. The agreement must be contractually valid (no undue influence or misrepresentation);
2. The agreement must be made by deed and contain a statement that both parties understand that it is a qualifying nuptial agreement and will partially remove the courts’ discretion;
3. There must be at least 28 days between the date of the agreement and the date of the wedding or civil partnership. (Parties should not be panicked into entering into these agreements on the eve of a marriage!);
4. Both parties must have received and made full disclosure of material information about their financial situation. Each party needs to know all about the means of the other;
5. Each party must have received independent legal advice at the time of the agreement.
What is most interesting is that the Law Commission have recommended that parties should not be able to waive their rights to disclosure and legal advice!
The media is alive with commentary, some excellent, some ill-informed. We will know more about this once the dust has settled but broadly the legal profession will welcome the proposals and will hope that parliament do whatever necessary.
For further information please contact a member of our family team on 01737 854 500 or email [email protected]