Professional Documents
Culture Documents
Family Law Week - The Law Commission's Report On Matrimonial Property, Needs and Agreements
Family Law Week - The Law Commission's Report On Matrimonial Property, Needs and Agreements
Family Law Week - The Law Commission's Report On Matrimonial Property, Needs and Agreements
Law Week: The Law Commission’s Report on Matrimonial Property, Needs and Agreements
Home > Articles > 2014 archive
The Law Commission’s Report on Matrimonial
Property, Needs and Agreements
Spencer Clarke, Lawyer in the Property, Family and Trust Law Team at the Law Commission
considers the Key recommendations of the Law Commission’s Report on Matrimonial,
Property, Needs and Agreements
Spencer Clarke, lawyer, The Law Commission
Introduction and Context
The Law Commission for England and Wales has just published its report on Matrimonial
Property, Needs and Agreements. The project has seen, first, the publication of a Consultation
Paper in 2011, dealing with marital property agreements, and, in 2012, following the extension of the
project, a Supplementary Consultation Paper focusing on the additional areas of financial needs
and nonmatrimonial property.
Our key recommendations in the Report are for:
1. guidance to be produced by the Family Justice Council on the law regarding how financial
needs should be met on divorce and dissolution; and
2. the introduction of binding nuptial agreements, to be known as qualifying nuptial agreements.
This article sets out the context of our recommendations before turning to a discussion of our key
policy points, concluding by examining the benefits of our proposed reforms.
Qualifying nuptial agreements ("QNAs") are a species of marital property agreement, also known as
nuptial agreements. Such agreements can include both the increasingly familiar prenuptial agreement
and the less common postnuptial agreement. Both aim to regulate the financial consequences of
separation and divorce (or dissolution of a civil partnership) at a time when such a separation has not
happened. They could also encompass separation agreements made at a time when the relationship
has broken down; we have not focused on these as their legal status is already uncontroversial.
Our Report emerged in a context where, over 20 years, nuptial agreements have moved from the
margins towards the centre of family law in England and Wales, at least in high value cases. In the
mid 1990s 1 the effect of prenuptial agreements on the outcome of what were then called ancillary
cookie information
relief proceedings was still very limited. Judges were constrained by the public policy rule that
By continuing to use this
agreements relating to a future and hypothetical separation were void because they might encourage
site, you accept that it
the breakdown of marriage. There was also a second public policy rule: that agreements could not
uses cookies.
Why are you seeing
remove the court's jurisdiction to order financial provision on divorce.
this?
accept and close
Gradually, however, judges began to accord more weight to nuptial agreements. The Privy Council
http://www.familylawweek.co.uk/site.aspx?i=ed127911 1/6
3/17/2016 Family Law Week: The Law Commission’s Report on Matrimonial Property, Needs and Agreements
case of MacLeod v MacLeod 2 swept away, for postnuptial agreements, the first public policy
objection; for prenuptial agreements this had to await the Supreme Court's decision in Radmacher v
Granatino, 3 handed down some months after the beginning of our project. The Supreme Court said
that, provided each person had a full appreciation of the implications of the agreement, the court
should give effect to nuptial agreements unless it would not be fair to hold parties to their agreement.
So agreements have acquired a status as close to binding as can be achieved without legislation.
We take the view, following consultation, that the time has come for such legislation, hence our
recommendation for the introduction of QNAs. In making this recommendation, discussed in more
detail below, we have recommended that 'needs' be the safeguard for QNAs – so that couples entering
into a QNA will not be able to contract out of meeting each other's financial needs on separation and
divorce. Our Report sets out in full the other safeguards we considered but we did not think that
'fairness', as used by the Supreme Court in the Radmacher case would work for QNAs. We take the
view that it is too inexact a concept to supply a safeguard with the level of certainty that is necessary
to ensure that QNAs will be useful.
Understanding the needs that must be met on divorce is therefore essential for QNAs to work
successfully. It is also the single most important area for the law of financial provision on divorce
given that, for most couples who separate, there is little possibility of sustaining the marital lifestyle
for two households rather than one. Meeting each party's needs becomes a matter of stretching
resources and choosing priorities. Therefore, for most of those who are separating, this will be our
most relevant recommendation.
We do not think that wholesale reform of the law relating to financial needs is currently necessary. It
is only one factor to which the court's attention is drawn by the statute (albeit often the preeminent
one). Any reform should be in the context of a full consideration of the law of financial relief, which
is outside the scope of the project.
We also considered, following the extension of the project, 'nonmatrimonial property'. This category
of property, which includes property acquired by one party before the marriage, or received by gift or
inheritance during the marriage, will not be shared on divorce unless required to meet the financial
needs of a party. For the majority of those who are separating this consideration will be irrelevant as
the couple's assets will be required to make provision for their needs, whatever their source.
Our Policy
Needs
In our Report we explain the extent of "financial needs" in the family law of England and Wales: that
it is a broad concept covering provision by way of capital as well as income and both longterm and
shortterm needs. Family lawyers, through experience, are confident in advising on the likely range of
outcomes in each case, but the understanding of litigants in person or those seeking to reach an
agreement outside the judicial arena is hampered by a lack of awareness of the aim of financial
provision on separation. Those 'going it alone' will form a growing proportion of users of the family
justice system and their difficulty in understanding what needs means in part stems from this lack of a
statutory objective. The absence of an explicitly stated objective also fosters the geographical
inconsistency in judicial decisionmaking which we have noted in the Report.
In practice, we believe that the purpose behind financial relief on divorce, aimed at meeting a couple's
(separate) needs, is evident in practice, if not always clearly stated. The objective is, and should be, to
enable the parties to make a transition to independence, in a way that takes account of the choices
made within the marriage or civil partnership, its length, the parties' ongoing shared responsibilities
(for example, for any children), the need for a home and the standard of living during the relationship.
We think this is what, for the most part, the courts are doing anyway. Despite what seems to be a
widespread public perception, most financial provision could not be described as a 'meal ticket for2/6
http://www.familylawweek.co.uk/site.aspx?i=ed127911
3/17/2016 Family Law Week: The Law Commission’s Report on Matrimonial Property, Needs and Agreements
widespread public perception, most financial provision could not be described as a 'meal ticket for
life'. In the majority of cases there is no order for periodical payments to a spouse and even where
there are such orders made, by agreement or otherwise, some will only be for a term rather than for
'joint lives' (that is until the death or remarriage of one party). But there can be an inconsistency in
approach, for example with regard to the duration of such orders, between courts in different areas.
We have therefore reached the conclusion that the provision of guidance on meeting financial needs
on divorce, which would include a statement of the objective of independence, is necessary. We offer
a sketch in the Report of what we think the proposed guidance should cover, in terms of the level at
which needs are met and for how long such provision should endure. We distinguish between cases
where there are children, and where there are not, and comment on the use of both joint lives and term
orders for maintenance.
We seek only to make clear, and reinforce, what might be called the 'mainstream' approach to
decisions on financial provision on divorce, rather than recommending reform in how needs are
approached. We do not consider that statutory reform would be proportionate or desirable. Guidance
from an authoritative body, consisting of the judiciary and practitioners, as well as the users of the
family justice system and experts, with government officials in attendance, best answers the need we
have identified. The Family Justice Council is such a body. We recommend that they produce
guidance to be published in both hard copy and electronically, and that there should be a plain English
version for the public, in addition to a more technical version aimed at the courts and family lawyers.
The guidance can and should be revised and updated regularly.
We go on to recommend that the government provide support for further work to see if guidance can
be developed that provides figures, rather than just words. We know that, particularly among
practitioners (mindful of the difficulties of the first child maintenance calculation), there has been
resistance to the idea of a 'formula' for spousal support and we acknowledge that no formula can take
account of all aspects of each unique case. But an increasing number of people separating from their
spouses or partners will not be able to afford 'tailormade' legal advice, and the court system simply
does not have the capacity to adjudicate each case.
We think the time is right for work to be done to see whether calculations for spousal support can be
developed. Rather than a single answer to each case we think that the calculations should generate a
range of provision to meet need, encompassing both its income and capital aspects. If this can be
done, separating couples can then negotiate their own financial settlements within these ranges,
confident at least that they are 'in the bracket'. We look, in particular, to the positive Canadian
experience of developing their 'Spousal Support Advisory Guidelines'.
Qualifying Nuptial Agreements
Our Report includes a draft Nuptial Agreements Bill, to introduce QNAs. The majority of those who
responded to our consultation supported the introduction of binding prenuptial agreements and we
take the view that there are strong arguments in their favour. In particular we focus on those of the
autonomy of the parties to the marriage, and certainty of financial outcome on any breakdown,
leading to a reduction in litigation and its attendant cost and stress.
By entering into a QNA the parties will remove the discretion of the court to make orders that are
inconsistent with the terms agreed by the parties, save for orders necessary to meet needs. Consultees
did raise concerns that binding nuptial agreements could potentially cause hardship: we think that the
safeguard of needs answers this concern. As would be expected, a QNA will not be able to fetter the
court's power to make financial provision for children, consistent with public policy.
Needs in the context of QNAs are needs as they are understood in family law generally, and as
clarified by our proposed guidance: we do not favour a more limited conception of need purely for
nuptial agreements. Couples can include provision in their QNA which is intended to meet their needs
on divorce but such terms will be subject to the court's scrutiny for their fairness, as they are at3/6
http://www.familylawweek.co.uk/site.aspx?i=ed127911
3/17/2016 Family Law Week: The Law Commission’s Report on Matrimonial Property, Needs and Agreements
on divorce but such terms will be subject to the court's scrutiny for their fairness, as they are at
present.
QNAs will be appropriate only for those couples where one or both have, or expect to acquire, assets
that would exceed those necessary to meet the couple's needs on divorce. The QNA might be aimed
at protecting specific property, for instance, an inherited house or a valuable shareholding generated as
a result of individual business enterprise. While, in the same way as current prenuptial agreements,
QNAs will therefore be of most interest to wealthier couples, they may also appeal to those who are
marrying later in life, perhaps not for the first time. Couples in this latter group, while not wealthy,
may each have sufficient assets to meet their needs, and may wish to preserve their property, often for
the benefit of children from a previous relationship. QNAs could also be of interest to younger
financially independent couples who do not have children (as the birth of children may create a
situation where one party can no longer meet their own needs on divorce, because of caring
responsibilities).
In order to provide protection for the parties entering into a QNA we have recommended that
agreements will only qualify if certain formal requirements are met:
1. The agreement must be contractually valid and enforceable.
2. The agreement must be made by deed.
3. It must contain a statement signed by each party that he or she understands that the QNA will
restrict the court's discretion to make financial orders.
4. The agreement must not be made during the 28 days ending with the day on which the
marriage or civil partnership is formed.
5. At the time the agreement is formed both parties must have received:
a. Disclosure of material information about the other party's finances; and
b. Independent legal advice (the provision of a statement signed by each party and their
lawyer confirming that such advice has been provided will create a presumption that this
requirement has been met).
The Nuptial Agreements Bill also extends the court's existing power to vary maintenance agreements
so that this includes, for the first time, prenuptial agreements. This follows from the comments made
by the Supreme Court in Radmacher v Granatino that the public policy rule that made such
agreements void should no longer apply. Given that those comments were not strictly required for the
Supreme Court's decision in the case, our Bill abolishes, if it still exists, that public policy rule. It also
makes clear that provisions in nuptial agreements which seek to restrict the jurisdiction of the court to
make financial orders will continue to be void, unless the agreement constitutes a QNA.
Nonmatrimonial property
We have not made any recommendations with regard to nonmatrimonial property. Following
consultation it became clear that there were widely differing views on what statutory reform might
look like. There was no clear majority view, amongst our consultees, on important issues such as
whether the family home should ever be regarded as nonmatrimonial property, whatever its source,
and whether property acquired during cohabitation leading to marriage or civil partnership should be
regarded as matrimonial or nonmatrimonial property.
We felt that any statutory reform of the law on nonmatrimonial property would therefore be
unacceptably controversial and that the use of a QNA would offer the best alternative solution to
statutory reform. How nonmatrimonial property should be treated by the court on divorce will only
be relevant where it is not required to meet needs; couples for whom this will be relevant will also be
those for whom a QNA will be a real possibility. We take the view that the best approach is for those
couples to create their own rules for nonmatrimonial property in a QNA, subject always to the
overriding requirement of need. This could include provision on the thorny questions of the status of
http://www.familylawweek.co.uk/site.aspx?i=ed127911 4/6
3/17/2016 Family Law Week: The Law Commission’s Report on Matrimonial Property, Needs and Agreements
nonmatrimonial property that changes over time, in which investment is made by one or both
spouses, or which is used by the family, as well as the other 'problem areas' identified above.
We express a preference as to the more desirable judicial approach to nonmatrimonial property, of the
two approaches that have developed. We believe that the better method is that which identifies the
nonmatrimonial property, disregards it, and shares the remainder equally (subject to the parties' needs
being met), exemplified in the case of Jones v Jones. 4 This is in preference to the more broadbrush
approach which shares the couple's property in proportions which the court considers to be fair, taking
into account the presence of nonmatrimonial property (seen in the case of Robson v Robson 5). We
consider the former approach to be clearer and more conducive to promoting financial settlement.
We do not agree with what appears to be the prevailing judicial approach of sharing any growth in
nonmatrimonial property during the marriage, unless it is 'passive growth'. We take the view that this
unfairly penalises those spouses who maintain and develop their property during the marriage.
Conclusion
Our Report builds on existing practice and trends in family law while seeking to promote certainty
and clarity across the financial spectrum of the cases seen in the family justice system.
In a climate where more people will have to manage without legal advice, either reaching agreements
between themselves or with the assistance of a mediator, we hope that the proposed guidance will
make the law more accessible. We think it will help these couples to understand the central principles
of the law on need so that they can be confident in the settlements they reach outside court. It will also
reassure those couples whose cases reach the court that they are benefitting from consistent justice. It
should assist the judiciary of the Family Court by reinforcing 'best practice' and make it easier for
practitioners to advise their clients.
Those couples whose assets meet or exceed their needs can use QNAs to regulate in advance the
arrangement of their financial affairs should they separate. In addition to offering such couples
increased autonomy this will enable more certain protection of family property, inheritance and
businesses, and help to avoid the cost, in all its forms, of financial proceedings on divorce and
dissolution. The introduction of QNAs will also bring us into line with the the majority of other
jurisdictions where binding marital property or nuptial agreements are commonplace, potentially
encouraging international couples to settle here and bringing wider economic benefit to England and
Wales.
The Report and the draft Bill, accompanied by an Executive Summary, an Impact Assessment and the
responses to both consultations can be found on the Law Commission's website.
__________________________
1 In cases such as F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR.
2 [2008] UKPC 64, [2010] 1 AC 298.
3 [2010] UKSC 42, [2011] 1 AC 534.
4 [2011] EWCA Civ 41, [2011] 1 FLR 1723.
5 [2010] EWCA Civ 1171, [2011] 1 FLR 751.
Keywords:
Financial remedies
law commission
http://www.familylawweek.co.uk/site.aspx?i=ed127911 5/6
3/17/2016 Family Law Week: The Law Commission’s Report on Matrimonial Property, Needs and Agreements
matrimonial property
Prenuptial agreement
Qualifying nuptial agreement
http://www.familylawweek.co.uk/site.aspx?i=ed127911 6/6