Marital Agreements and Private Autonomy in a Comparative Perspective

Principal Investigator: Dr Jens M. Scherpe, University of Cambridge

This research project is supported with a Small Research Grant by the:

Background

Unlike many jurisdictions, England and Wales does not have a matrimonial property regime. Instead the courts are given a wide discretion as how to determine the financial consequences of a divorce. While this allows for a great degree of flexibility and thus (at least theoretically) for fair outcomes in each particular case, it creates significant uncertainty for the spouses – despite (or maybe even because of) recent House of Lords decisions like White v White [2001] 1 AC 596 and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24. The current state of the law has been the subject of much criticism, from both academics and practitioners.

One obvious way of achieving greater certainty for spouses in their financial affairs could be marital agreements in which the couple regulate their property and other relations in case of divorce. Therefore it seems quite surprising that, despite the lack of legal certainty in England and Wales, such marital agreements are not currently enforceable in this jurisdiction and that the private autonomy of the parties in this regard is disrespected. By contrast, in many other jurisdictions, interestingly even those with rigid matrimonial property regimes which provide for high degree of legal certainty (at the expense of flexibility), such marital agreements are principally binding and enforceable. The current legal status of such agreements in England and Wales has been the subject of much debate, and many have argued for greater recognition of such agreements (see e.g. Sir Mark Potter P. in Charman v Charman [2007] EWCA Civ 503 at [124]). This has led the Law Commission of England and Wales to make ‘Marital Property Agreements’ part of its 10th Programme of Law Reform; the Law Commission’s project will commence in September 2009 and a report and draft Bill are expected in September 2012. Recent decisions like MacLeod v MacLeod [2008] UKPC 64 and Radmacher v Granatino [2009] EWCA Civ 649 have further highlighted the need for a comprehensive analysis and reform of this area of law.

The research project ‘Marital Agreements and Private Autonomy in a Comparative Perspective’ is therefore a timely one and will hopefully contribute to the academic and political debate and indeed the work of the Law Commission from a comparative law perspective. In addition, it will also make available up-to-date information on foreign matrimonial property regimes, spousal maintenance after divorce and marital agreements, in the English language.

Methodology and research objectives

The research project will combine the expertise of academics from several European and non-European jurisdictions in order to compare how marital agreements function in their respective national legal and social contexts; it will also examine whether there are underlying principles that are to be found in most or even all jurisdictions. Further, based on the comparative analysis, the project will conclude with recommendations for the regulation of marital agreements.

The following jurisdictions have been carefully chosen because of certain aspects of their law, and leading academics from these countries will participate in the project and deliver national reports:

In addition, senior practitioners from England and Wales; Mark Harper and Brett Frankle (Withers LLP) will give ‘The practitioner’s view’ to ensure that the issues relevant for legal practice are covered and to highlight which areas merit particular consideration.  Professor Elizabeth Cooke, Law Commissioner for England and Wales will contribute an article on the Law Commission's work on marital agreements.

The comparative report and conclusions will be drafted by the principal investigator, Dr Jens M. Scherpe, University of Cambridge.

The methodology for the research project will follow the approach used by the principal investigator in some of his previous work (published as ‘Rechtsstellung nichtehelicher Lebensgemeinschaften – The Legal Status of Cohabitants’, edited jointly with Nadjma Yassari, 605 pages, Mohr Siebeck publishers 2005). Thus, a detailed questionnaire for the national reports has been devised by the principal investigator. As the underlying social issues often will be the same, the objective of the questionnaire is to ensure that the solutions found in all jurisdictions to these issues are described. The questionnaire will first ask the participants to outline the matrimonial property and spousal maintenance of their jurisdiction so that the legal rules governing marital agreements will be put into the correct legal – and social – context. Then, different kinds of marital agreements will be distinguished and examined in detail: pre-nuptial agreements, post-nuptial agreements and separation agreements (meaning agreements concluded shortly before or during divorce proceedings, i.e. at a point in time where the spouses have already decided that they will divorce and are merely deliberating the division of assets, maintenance etc.).

Once the questionnaire is finalised, the participants will write their national reports in English, based on their responses to the questionnaire. During this period, specific issues will be discussed on a one-by-one-basis with the principal investigator or via circulated emails with all participants.

After the initial presentations of the preliminary findings at a conference on 26-27 June 2009 a workshop took place. There the participants discussed their preliminary findings with the entire group. Suggestions for underlying principles and general recommendations regarding reform in this area of law were debated also.

The participants are currently finalising their reports.  The principal investigator has begun to draft the comparative report and recommendations. If necessary, the principal investigator will undertake further research and for this purpose and will visit and collaborate with the other participants at their home institutions. Once the draft of the comparative report and recommendations has been completed, it will be circulated to all participants for comments and discussion. When all contributions have been finalised they will be published as a book and thus made available to the public as 'Marital Agreements and Private Autonomy in a Comparative Perspective' by Hart Publishing by Autumn 2010.

For further information please contact: Dr Jens M. Scherpe, University of Cambridge, email: jms233@cam.ac.uk