Posted by Patrick Hart, Partner
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Family law reforms will affect divorce and matrimonial
New guidance should be drawn up to give individuals a clearer idea of how their needs would be assessed on divorce, the Law Commission has recommended in new proposals that would also see pre-nuptial agreements become binding in UK law. …
New guidance should be drawn up to give individuals a clearer idea of how their needs would be assessed on divorce, the Law Commission has recommended in new proposals that would also see pre-nuptial agreements become binding in UK law.
Though the commission’s report, ‘Matrimonial property, needs and agreements’, does not specifically recommend a full-scale amendment of English matrimonial law, it does suggest a structure for gradual reform to manage the increasing number of self-represented litigants.
In one recommendation, the report requests that the meaning of ‘financial needs’ be clarified in Family Justice Council guidance to allow the term to be “applied consistently by the courts, reinforcing judicial best practice”.
“It will also give people without legal representation access to a clear statement of their responsibilities and the objective of eventual independence that a financial settlement should strive to achieve,” says the report.
In addition, the possible introduction of formulas allowing couples to calculate their financial liability, as is the case in Canada, is subject to more research as to whether it would be a practical solution. “Formulae, if developed, would take the form of non-statutory guidance and would give a range of outcomes within which the separating couple might negotiate,” the report recommends.
Largely predicted to form the core of the proposal, pre-nuptial agreements would only be binding if they met certain conditions and only after both partners’ financial needs, and any financial responsibilities towards their children, had been met.
“We believe that married couples and civil partners should have the power to decide their own financial arrangements, but should not be able to contract out of their responsibilities for each other’s needs, or for their children,” said Professor Elizabeth Cooke, the commissioner heading the project.
At present, the courts will enforce pre-nuptial agreements in most circumstances where they are satisfied that the parties have entered into them willingly and after receiving independent legal advice, but there is no guarantee that they will be upheld.
“Pre- and post-nuptial agreements are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect,” Professor Cooke said.
“Qualifying nuptial agreements would give couples autonomy and control and make the financial outcome of separation more predictable,” she added. “We have built in safeguards to ensure that they cannot be used to impose hardship on either party, nor escape responsibility for children or to burden the state.”
Pre-nupital agreements would be binding if there has been no undue influence, the parties have received independent legal advice, have been signed at least 28 days before the wedding, and where there has been full disclosure.
A draft bill attached to the recommendations would make the required amendments primarily to the Matrimonial Causes Act 1973 and Civil Partnership Act 2004. However, this will depend not just on parliamentary timetable but also on the government’s willingness to take the proposals forward.
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