Marital Property Agreements
Background
This project will examine 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 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.
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.
Latest
The Commission has recently considered some of the issues relevant to this project in the context of its work on cohabitation. The Commission's Report made recommendations about cohabitation agreements. The Marital Property Agreements project will not consider the treatment of cohabitation agreements; its scope is limited to financial and property agreements between spouses and civil partners.
This project is due to commence in late 2009, with a report and draft Bill expected in late 2012.
For more information, contact the property and trust law team or go to the team page.
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