The proposals by the Law Commission are now a week old and a better opportunity can now be taken to consider their wider impact. How do they affect international families? There are a number of implications and these are a few:
1 It remains hard to advise with any certainty and confidence in a forum choice case about what will be the outcome in England and Wales. Although our law may be clearer now than perhaps any time in the past 14 years or so, as far as categorisation of assets and relationship with needs are concerned, it is still nevertheless very unclear and uncertain. In contrast to civil law jurisdictions and countries such as New Zealand, the English lawyer cannot give really confident predictions on outcome apart from a fairly wide range. In some cases this range may be good enough. The difference may still be stark with the other possible forum. But the Law Commission could have given us much greater clarity, certainty and predictability. This would have helped international spouses and their advisers in taking forum decisions.
2 The recommendations regarding binding marital agreements and their qualifying conditions are very good in my opinion and I hope there is a prompt Parliamentary legislation. But in my discussions in this past week with lawyers abroad, there has been the inevitable uncertainty and disquiet about the opportunity for needs to trump the terms of a marital agreement with the consequence that the agreement is not binding. This is a jurisprudential argument which was fully considered by the Law Commission. In England we are absolutely wedded to "needs". We are rightly a needs dominated jurisdiction. Marriage is a relationship in which a couple commit themselves, for better for worse, in sickness and in health, for life. This encompasses looking after the needs of the other. Some of the most magnificent and praiseworthy self-sacrifices in life are seen in the marital commitments. Couples should feel confident of committing themselves, their careers and their financial futures to their spouse. This finds echoes in public policy of provision for needs. So England must maintain its needs priorities. Nevertheless it does leave uncertainty for advisers abroad considering how likely it is that a marital agreement will be binding when it is not known what will be the state of affairs at the time of the relationship breakdown as far as needs are concerned. I accept this difficulty but I believe the Law Commission was right and that the greater importance is the provision for marital needs.
3 The recommendations in the draft legislation make it clear that a foreign marital agreement will be upheld as binding if it complies with the qualifying conditions. Compared to some countries, these are not complex or onerous. Foreign lawyers when preparing a marital agreement which might be relevant for future proceedings in England must ensure that it complies with the intended English preconditions.
4 Marital agreements are only binding once the new legislation is in place. At iFLG, we have been recommending that marital agreements presently being entered into should include a clause that the parties would enter into another agreement, in identical terms, once the new legislation is in place.
5 Non-EU practitioners must be aware that within EU legislation marital agreements can be binding on certain provisions without the proposed English qualifying conditions. There is no need for independent legal advice. There is no need for disclosure. It can even be in lawyers' correspondence. This is found for example in the EU Maintenance Regulation where agreements on choice of law and jurisdiction are binding and have priority notwithstanding the absence of any of the proposed English safeguards. This is because EU law comes from the civil law traditions of the continental European countries. The influence of the common law is marginal in EU family law affairs.
6 Even worse as far as the EU position is concerned, in the frantic rush to be the first to issue divorce proceedings in an EU country and therefore seize jurisdiction, the fact of any agreement is totally irrelevant. So if the couple have agreed about where they want the divorce to take place in a marital agreement, this is completely ignored under EU law. Of course it is wildly inconsistent, jurisprudentially illogical and contrary to every good trend towards private autonomy and ordering of family affairs. But the EU has been resistant for 15 years now, since a few of us argued to the EU in the late 1990s against lis pendens on divorce. It constantly seems the EU does not listen to practitioners and specifically does not listen to common law practitioners.
This is just a few of the likely implications and consequences of the Law Commission proposals for international families and their advisers. For fuller details and issues to be considered, please contact David Hodson at iFLG (firstname.lastname@example.org)
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.
David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on email@example.com.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.