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Hayley Trim's Analysis: Procedure and Prenups

Date:11 JAN 2011

Hayley Trim, Family Law PSLThe Christmas decorations have been put back in the attic for another year, New Year resolutions made... and broken, and almost all the snow has gone away; but here are two little treats for the beginning of 2011:


1. The Family Procedure Rules 2010

The new Family Procedure Rules were laid before Parliament on 16 December 2010 and will come into force on 6 April 2011.

What does this mean for practitioners? Well, the new rules are of virtually universal application and importance for family lawyers. They draw together the Family Proceedings Rules 1991, Family Proceedings Courts (Children Act 1989) Rules 1991, Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991, Family Proceedings (Adoption) Rules 2005 and various other statutory instruments such as those relating to reciprocal enforcement of maintenance orders. However, there remain some references to the County Court Rules 1981 and Rules of the Supreme Court 1965. Most, but not all, of the new rules apply to the High, County and Magistrates' Courts with a view to harmonising procedure across the family courts.

The changes are mainly of form rather than substance. The structure is akin to the Civil Procedure Rules 1998 with the rules being divided into parts with corresponding Practice Directions providing more detail. Many of the longer provisions of the previous rules have been broken down into shorter rules for clarity. For the most part, practitioners are going to have to become familiar with the different locations of old provisions - for example the 9.5 Guardian will no longer exist - the new rule 9.5 relates to the commencement of financial proceedings and guardians and litigation friends are now to be found in Part 16.

There are some substantive changes such as the inclusion of strike out provisions from the CPR and a wider requirement for permission to appeal, but until the outstanding practice directions (including forms) have been finalised the full extent of the changes remains to be seen.

The 2011 edition of the Family Court Practice (the Red Book) will of course carry the new rules and practice directions with commentary.

2. Law Commission Consultation Paper on Marital Property Agreements

On Tuesday 11 January the Law Commission releases its consultation paper in relation to Marital Property Agreements setting out the arguments for and against reform of the law in this area taking into account the law as it currently stands post Radmacher. The consultation makes some provisional proposals in the event of reform and seeks responses from interested parties.

The Commission considers what criteria would be desirable for a "qualifying nuptial agreement" ie one that ticks all the boxes such that it is capable of excluding the discretionary power of the court and being enforced as a contract. Those criteria would, under the Commission's provisional proposals be as follows:

a) The standard contractual requirements must be met: each party must intend to be legally bound by the agreement and have entered into it freely without duress, undue influence, misrepresentation of key information, or mistake as to the fundamental nature of the agreement. Each must get something from the bargain, or this could be circumvented by making it a deed.

b) The agreement must be in writing and signed by both parties.

c) It is proposed that there be material full and frank disclosure of each party's financial situation; any assets not disclosed would be subject to the normal ancillary relief rules.

d) Legal advice (not just the opportunity for it) would be required, to include as a minimum an explanation of the effect of the agreement on the legal rights of the party, and the pros and cons of the agreement.

e) It is not proposed that there be a time restriction for prenuptial agreements to be concluded prior to the marriage as this only transfers pressure to the deadline rather than the marriage.

f) There would be further additional safeguards under the provisional proposals. An agreement would be unenforceable to the extent that it did not provide for the needs of any child of the family or such that one spouse was left dependent on state benefits if this could be avoided.

Areas where responses are invited include:

- Whether couples should be able to enter binding agreements not to seek ancillary relief on divorce.

- Whether such agreements should cover all assets or just non-matrimonial ones. The Commission considers the case for recognising only agreements which relate to non-matrimonial property, there being international precedent for this in that some countries operate a community of marital acquest regime.

- Whether the requirement for full and frank disclosure could be waived by the parties.

- What restrictions there should be on the enforceability of qualifying nuptial agreements beyond f) above (i) generally and (ii) the position if qualifying agreements are restricted to non-matrimonial property. For example:

Should an agreement be enforced subject to "fairness"? The Commission doubts that such a test makes for greater certainty but invites opinions.

Should a qualifying agreement be enforced if needs are not met? And how should needs be interpreted? The Commission takes the view that needs goes beyond ensuring a spouse is not left reliant on state benefits, however, should needs also encompass a compensation element and how generously should needs be interpreted?

The Law Commission recognises that reform may bring welcome certainty for some, but it is not anticipated that marital agreements could or should be used by everyone as they will be inappropriate in many cases where the assets are insufficient or only just sufficient to meet needs. So while this consultation is undoubtedly important, the impact of any resultant reform is destined to be limited.

Happy New Year!

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.