Law Commission Consultation Paper No 343 Matrimonial Property Needs And Agreements

We launched a follow-up consultation in September 2012. It was agreed with the Department of Justice to extend the scope of the project to a targeted review of two aspects of the financial provision for divorce and dissolution of a civil partnership: financial needs and non-judicial ownership. In 2009, the Legal Commission launched a project to examine the status and applicability of spousal property agreements. We recommended that the Family Justice Council establish guidelines for needs. 1) guidelines developed by the Family Justice Council on how to meet financial needs in the event of divorce and dissolution; and two. binding marriage contracts called qualified marriage contracts. These are agreements between couples before, during or at the end of their marriage or partnership on how their wealth and finances are treated when they separate. Our report contains a bill on marriage agreements that would introduce qualified marriage contracts in England and Wales. In January 2011, we opened a consultation that reviewed the existing Marriage Property Contracts Act and discussed reform options. 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.

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