The Law Commission report on Matrimonial Property, Needs and Agreements, due to be published tomorrow (27th February), is awaited with bated breath. The Law Commission were originally intending to address marital agreements such as pre and post nuptial agreements. This has now been extended to cover some other issues relating to financial issues following divorce. In particular, they will also be looking at the financial ‘needs’ of the parties and ‘non-matrimonial property’.
Pre & Post Nuptial Agreements
Discussions about Pre and Post Nuptial Agreements have been doing the rounds for some time now and although many other countries have embraced them, in the UK we have been somewhat guilty of dodging the decision.
That said, there have been a number of cases which have helped clarify the current position on Pre and Post Nuptial Agreements which is that provided that they are entered into freely and that the parties fully understand the implications of the agreement, the courts will normally give effect to them – unless it is deemed unfair to do so. However, they are still not technically enforceable and that is what the Law Commission is considering.
Needs is one of the factors that the court should take into account when considering a financial settlement on divorce. The difficulty with needs is how they are to be calculated. Time and time again the parties’ interpretation of their needs will differ. Often the big question to consider is whether the needs of one person used to a high standard of living should be greater than those of someone who is used to a much lower standard of living. Therefore a definition of what “needs” is will be extremely helpful to family lawyers and our clients alike.
This refers to property that is considered to belong to one party because, for example, they owned it prior to the marriage or it has been inherited during the marriage. Again how this type of property should be treated has been debated on and off for a number of years. The key question is whether such property should be shared or ring-fenced. At the moment, the courts will use non-matrimonial property to meet the needs of the parties and only when those needs have been met might the courts say that any non matrimonial property can be ring fenced. Again clarification from the Law Commission is welcome.
And so until tomorrow…when hopefully all will become clear as the report is published. We’ll be sure to blog again shortly with our interpretation of the findings.