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Family Law

The leading authority on all aspects of family law

01 FEB 2011

The Law Commission's Consultation on Marital Property Agreements

Elizabeth Cooke

Professor, Law Commissioner for England and Wales

As I write in the first week of January 2011 the turkey has all been eaten, the mince pie stockpiles have been demolished and the tree has shed most of its needles. It is time to get back to work. Likewise, the appeal in Radmacher (Formerly Granatino) v Granatino [2010] UKSC 42, [2010] 2 FLR 1900 has been heard, the Supreme Court's decision has been handed down and reported, and we have digested the robust decision of the majority and Lady Hale's thought-provoking dissent. Now it is time to look again at pre-nups and post-nups under the spotlight of independent consultation. This article, based on our Executive Summary which can be downloaded from our website, summarises the Law Commission's consultation paper and invites readers to let us have their views.

The Law Commission undertook in its 10th programme of law reform, published in June 2008, to carry out a project about marital property agreements. We use that term to mean:

  • Pre-nuptial agreements, made before marriage or civil partnership that seek (sometimes among other things) to make provision for the financial consequences of divorce or dissolution. 
  • Post-nuptial agreements to that effect made after marriage or civil partnership.
  • Separation agreements, made on or after separation and usually in anticipation of an imminent divorce or dissolution.

Readers of this journal need no introduction to the law relating to these agreements. We began work on our project in the autumn of 2009 and had planned to publish a consultation paper in the early summer of 2010. But then came the Supreme Court hearing in March 2010 of Radmacher (Formerly Granatino) v Granatino (above), and we decided to await the outcome of that before publishing. The wait for the decision was rather longer than we had anticipated and now, with so recent a decision of the Supreme Court in an ancillary relief case that turned upon the weight to be afforded by the court to a pre-nuptial agreement, what is there left for the Law Commission to do and what further reform might be wanted? To answer that question we have to look at what the Supreme Court did and did not decide, at the risk of covering again ground that has become well-trodden over the last few months.

To read the rest of this article, see February [2011] Family Law journal.

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