Thursday, February 27, 2014

Law Commission report on Matrimonial Property, Needs and Agreements published

The Law Commission has today published its much-anticipated report on Matrimonial Property, Needs and Agreements.

Here are the 'headlines':

Financial needs - The Commission recommends that the Family Justice Council produce authoritative guidance on financial needs. The guidance would explain that, when determining a settlement, a judge aims to enable both parties to make a transition to independence.  This would enable couples to reach an agreement that recognises their financial responsibilities to each other, and reflects what the law says on how this should be done. Guidance would also help to reinforce consistency to how the law is applied in the courts, increasing public confidence in this area of the law.

The Commission also recommends that work be done with a view to assessing whether formulae that generate guideline amounts for payment from one former spouse to another could be devised.

Marital property agreements - The report recommends that legislation be enacted to introduce “qualifying nuptial agreements”. These would be enforceable contracts, not subject to the scrutiny of the courts, which would enable couples to make binding arrangements about the financial consequences of divorce or dissolution.  In order for an agreement to be a “qualifying” nuptial agreement, certain procedural safeguards would have to be met. Qualifying agreements could not, however, be used by the parties to contract out of meeting the “financial needs” of each other and of any children.

Non-matrimonial property - The Commission has not made any recommendations about reform relating to non-matrimonial property. Where the parties to a marriage want to achieve certainty in advance about the continued ownership of non-matrimonial property they should be free to make contractual arrangements to that effect, without having to submit their agreements to the courts’ assessment of fairness.

Here is Law Commissioner Professor Elizabeth Cooke discussing the recommendations:

The full report can be found here, and a summary here.

No doubt every legal hack in the business and their spouse will soon have written a piece about the report. Below are links to a couple:

This is Hayley Trim's analysis at Family Law.

And here is Spencer Clarke, Lawyer in the Property, Family and Trust Law Team at the Law Commission considering the key recommendations of the report on Family Law Week.

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