Pre-nuptial agreements: Lady Hale and a lesson from America
This article is written in anticipation of the Law Commission's report following its enquiry into, firstly, the extent to which one party to a marriage or civil partnership should be required to meet the other's needs after the relationship has ended, and secondly, how 'non-matrimonial property' should be treated on divorce or dissolution.
Addressing the latter aspect of the enquiry, the article discusses a key aspect of the dissenting judgment of Lady Hale in the Supreme Court case of Radmacher v Granatino (on appeal from EWCA Civ 649) regarding the differentiation between pre-nuptial and post-nuptial agreements. Drawing upon the author's research into the evolution of the law concerning such agreements in the states of California and New York, the article highlights inconsistencies in approach, and anomalies of outcome, in legislation and case-law in these two states.
The article submits that an understanding of the evolution of these diverse types of agreement in English and Welsh law, will be crucial to the Law Commission in its recommendations as to reform, and that any proposed legislative reforms should avoid adopting the premise, as proclaimed by the majority in Radmacher, that there is 'no material distinction between ante-nuptial and post-nuptial agreements'.
By Nick Rees, Senior Lecturer, School of Law, Oxford Brookes University
The full version of this article appears in the March 2013 issue of International Family Law.
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