Family law solicitors’ views sought on marital property agreements

10th March 2015 by

On 11th January 2011 The Law Commission published its consultation paper on the future of marital property agreements, or pre-nuptial, post-nuptial and separation agreements as they are more commonly known. The Commission sought the views of family law solicitors in London, Brighton and throughout England and Wales on proposals to make such agreements enforceable in family law courts.

In October 2010, the Supreme Court upheld a pre-nuptial agreement between German heiress Katrin Radmacher and her French-born ex-husband Nicolas Granatino which stated that neither would lay claim to the other spouse’s wealth should the marriage end in divorce. The ruling was seen as significant because, although it was made in light of the existing legislation, it was ultimately seen that a family court would, if all the circumstances were deemed appropriate, uphold a pre-nuptial agreement.

At the time of the Radmacher ruling, many divorce lawyers and family law solicitors called for clarification on the complex issue of marital property agreements and many interested parties lent their voices in calling for statutory reform.

Family law research for the consultation paper
Before the consultation was launched, the Law Commission wished to research the ways in which family legal practitioners drafted marital property agreements and dealt with existing agreements (under the law as it was in 2009). Dr Emma Hitchings of the University of Bristol was commissioned to carry out the research project with these requisites in mind and to provide a perspective on family law practitioners’ views on law reform in respect of property agreements on divorce, civil-partnership dissolution and separation.

At the time of the consultation it was held by the Law Commission that the legal recognition of pre- and post-nuptial agreements was of “great social importance”.

While relationship breakdown remained a significant factor of modern family life, the ensuing financial and property disputes between spouses and civil partners were well recognised as causing, perhaps unnecessary, distress and expense. The Law Commission expressed a view that it was the unenforceability of marital property agreements which may have, in certain circumstances, led to an unwillingness for couples to marry or enter into a civil partnership.

As the consultation commenced
In January 2011, leader of the consultation Professor Elizabeth Cooke acknowledged that a change in the law regarding the financial affairs of married couples could be controversial.

She said, “This is a very emotional area. Some feel that where couples have reached agreement, the courts should not be involved; yet the courts’ approach is primarily protective, and some feel that they should not be wholly excluded.

“Our consultation paper considers the arguments for and against reform and examines how a new approach might balance the desire of some couples to plot their own future with more certainty against the need for safeguards against exploitation and the creation of hardship. This is an issue that needs to be handled with care.”

Healys family law solicitors in London and Brighton will handle your pre-nup with care
Whatever the outcome of the Law Commission consultation on marital property agreements the family court will inevitably handle each instance of a pre- or post-nuptial agreement being in place on a case-by-case basis, so it is extremely important that any such agreement be undertaken with expert legal assistance.

When entering into a marital property agreement it will be crucial that no party to the relationship, or their dependents, be left in financial hardship and that no element of coercion took place in the drawing up and signing of the agreement.

Our many years’ experience as specialist family solicitors and lawyers has taught us that each individual situation is different. Healys can help you draw up a marital property agreement before a prospective marriage or civil-partnership, or, if you feel that you wish to make your financial situation clear once the union has taken place, we can assist in the drawing up of a post-nuptial agreement. We aim to achieve the best for our clients by listening sensitively and giving straightforward legal advice so you can weigh up what choices will work best for you.

Call direct to Catherine Taylor on 01273 669 124 or e-mail on catherine.taylor@healys.com

Wherever you are in the country, our family law solicitors in London and Brighton will be able to help and look forward to assisting you in whatever family law issue you may have.