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One of the good recommendations from the recent English Law Commission report into marital agreements was that foreign marital agreements should be given equal weight and binding status under English law if they accorded with the same minimum qualifying conditions as required for English marital agreements. It will not matter they also satisfy other country's qualifying conditions, either if more onerous or just different. What matters is that the qualifying conditions under English law are satisfied.
Some may regard the qualifying conditions as reasonable: no duress or misrepresentation, reasonable level of disclosure, a reasonable period before the wedding ceremony, legal advice and similar. No heavy duties of disclosure. No particular forms. Qualifying conditions which can be understood in many countries.
This is an opportunity which should be seized by the worldwide international family law community. There should be standard, internationally acknowledged and adopted, minimum qualifying conditions for a marital agreement to be binding in Westernised jurisdictions.
The content of marital agreements may vary, in part because parties may be opting in or opting out of local marital property regimes. But a uniform set of qualifying conditions should be capable of some consensus, and especially in the common law world. There is a dramatic difference with the civil law expectation of minimal disclosure and no independent legal advice. But again there should be dialogue to find how the conditions normally expected for the common law tradition to protect the spouses can be incorporated.
While many of us criticise the ‘first to issue' principle in Brussels II, it represented a tremendous leap forward in providing identical divorce jurisdiction across the 500 million population of the EU. We need the same in identical preconditions for binding marital agreements.
If any jurisdictions have particular additional requirements then this can be for local law and specifically additional to the worldwide requirements.
For some jurisdictions it will mean significantly loosening the strenuous demands on marital agreements. This may be beneficial both locally and internationally. If a similar jurisdiction with similar traditions and similar anxieties about protecting vulnerable spouses can agree certain preconditions and safeguards, why will another jurisdiction demand dramatically more preconditions?
This requires some organisation to take this initiative, convene and actively promote international consensus; perhaps lawyer led or from the commercial realm, eg publishing houses, or intergovernmental. Perhaps it might be an area for the Hague Conference.
A number of countries at the moment are either reviewing the minimum pre-requirements for marital agreements or thinking of introducing such a law. Now is the time for the international family law community to work hard to benefit international families by producing qualifying conditions for international acceptance.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.
David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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