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Academic's research central to Law Commission review of pre and post-nuptial agreements

19 January 2011

On 11 January 2011, the Law Commission published two research reports conducted by Dr Emma Hitchings, a Senior Lecturer in the School of Law, relating to Marital Property Agreements (pre-nuptial and post-nuptial agreements). Both reports are available on the Law Commission’s website.

On 11 January 2011, the Law Commission published two research reports conducted by Dr Emma Hitchings, a Senior Lecturer in the School of Law. Both reports are available on the Law Commission’s website, on the Marital property agreements (pre-nuptial and post-nuptial agreements) project page.  Both research studies were commissioned and funded by the Law Commission and have been used and cited throughout the recently published Consultation Paper.

... this is a rapidly developing field. The law is not standing still, and practice moves rapidly with it, but practitioners and their clients can be frustrated by the law's uncertainties.

Dr Emma Hitchings
The Law Commission's project examines the status and enforceability of agreements made between spouses or civil partners (or those contemplating marriage or civil partnership) concerning their property and finances.  Such ‘marital property agreements’ might regulate the couple's financial affairs during the course of their relationship; equally they might seek to determine how the parties would divide their property in the event of divorce, dissolution or separation.  They might be made before or after the marriage or civil partnership is entered into; if before, they are often referred to as pre-nuptial agreements (or "pre-nups").  They need not be made in anticipation of impending separation; but they might constitute separation agreements reached at the point of relationship breakdown.  Marital property agreements are not currently enforceable in the event of divorce or the dissolution of a civil partnership (in contrast to the position in many other jurisdictions).  The court may, however, have regard to them in determining what ancillary relief is appropriate.

Dr Hitchings' first study of the Views and approaches of family practitioners concerning marital property agreements provides much needed research from a qualitative perspective into how legal professionals draft marital property agreements, advise clients, deal with existing agreements and is a source of evidence of solicitors’ concerns in relation to marital property agreements.  A summary of the main findings from the study has been published:

"From Pre-nups to Post-nups: Dealing with Marital Property Agreements" [2009] Family Law 1056 (abstract only)

The study demonstrates key issues which the Law Commission project will need to consider, including:

  • how far the law can go in prescribing formalities to attempt to ensure that the parties to an agreement have access to advice and information;
  • the extent to which the law should control the content of agreements, which will mean striking a balance between the demand for autonomy and predictability with the ancillary relief culture of protection.

The second, follow-up study, conducted in early 2010, Marital property agreements: a supplemental enquiry, investigated whether demand for legal advice on marital property agreements had increased since the original survey.

The Consultation Paper also cites other empirical research conducted by Dr Hitchings (funded by the Nuffield Foundation) into the everyday ancillary relief case:

“Everyday Cases in the Post-White Era” (2008) 38 Family Law 873.

The Marital Property Agreements Consultation Paper reviews the law relating to agreements made before or during a marriage or civil partnership which seek to regulate the couple’s financial affairs during the relationship or to make financial arrangements for any period of separation or for the financial consequences of divorce or dissolution. The Law Commission consultation period lasts for three months and ends on 11 April 2011.


Further information

The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and to recommend reform where it is needed.

The Law Commission suggests that "the legal recognition of marital property agreements is of great social importance. Relationship breakdown remains a significant phenomenon and financial and property disputes between separating spouses and civil partners often lead to distress and expense for all involved. There is a view that the fact that pre-nuptial agreements are not currently binding may deter people from marrying or entering into civil partnerships in some cases. The issue may be of particular importance to those who have experienced divorce and wish to protect their assets, however extensive, from a future claim for ancillary relief. It may also be crucial for couples who have entered into marital property agreements in jurisdictions in which such agreements are enforceable."

Please contact Dr Emma Hitchings for further information.
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