"This project commenced in October 2009. The Commission is currently awaiting the decision of the Supreme Court in Radmacher v Granatino UKSC 2009/0031 before publishing a consultation paper. The Commission plans to publish in early 2011, at which time we shall be reviewing the eventual timing for publication of a report and draft Bill."
I read something along these lines last Tuesday. The law on pre-nups does need clarification. Post nups are even more interesting. I think the view here is that a post nup is OK as the parties were married when they made it so the question of enticing one partner into a marriage would not arise.
"The purpose of this study is to provide much needed research from a qualitative perspective into how legal professionals draft such agreements, advise
clients and deal with existing agreements, as well as to provide a perspective on their
views and opinions of law reform in this area. This research report seeks to present
the law as at 31st March 2009"
“Again, being in this neck of the woods, I’d look to limit that maintenance for 5,
10 years, and you may justify that locally. I don’t know if you’d get away with it in London. I’m sure you wouldn’t. Your North/South divide! Spousal
maintenance is the hardest issue in any divorce.”
Although this was the only practitioner who explicitly mentioned how the usual
approach of the local county court would impact their advice when advising upon and
drafting a pre-nuptial agreement, a number of other practitioners mentioned the
disparity of approach in different courts in ancillary relief proceedings:
“We don’t really get involved in cases outside of (local area) very often,
obviously from time to time, and that’s an interesting one when you see how
courts round the country deal with things. One of the interesting things is the Clean Break principle. In the (local court) of course, if you’re a woman with
children, you’re going to get maintenance. But other courts, I remember going
down to (other area) once to do a hearing in (different) County Court. I was
saying all this about ‘this is obviously not a Clean Break case’ – it was an FDR –
and the judge said ‘actually, we do that quite a lot round here’.”
It is therefore impossible to say with any certainty that local county court practice and approach in ancillary relief cases makes any notable difference to the way in which agreements up and down the country are negotiated, but it is nevertheless a useful indication of an additional factor that influences practitioners when drafting and advising upon agreements."
Law Commission consultation paper on
"marital property agreements" aka prenups, postnups,Separation Agreements
If the law of Ancillary Relief is uncertain, and marital property agreements are desired so as to remedy that, then perhaps the underlying law should be changed instead. If we can achieve certainty and fairness that way, the need for contracts could be avoided; alternatively, contracts could do a better job against the background of better underlying law.
5.64 Reform of ancillary relief would be a major undertaking. A consultation upon such a reform would have to address such issues as:
(1) the overall objective of the discretion within section 25 of the Matrimonial Causes Act 1973;
(2) the extent of the “needs”, if any, to be met after the ending of a marriage and for how long they should be met;
(3) the extent of matrimonial and non-matrimonial property;
(4) the role of conduct;
(5) whether the law of England and Wales should provide a European-style matrimonial property regime; and
(6) the role, within a new law of Ancillary Relief, of marital property agreements.
5.65 Such a review is not within the scope of this project.But we would like consultees to tell us if they think that the reform of marital property agreements should await a wider review of the law of Ancillary Relief."