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From Pre-nups to Post-nups: Dealing with Marital Property Agreements

Date:6 NOV 2009

Emma Hitchings, School of Law, Bristol University

This article presents preliminary findings from a study of marital property agreements. The research was commissioned as a prelude to the Law Commission's project on marital property agreements in order to provide much needed research from a qualitative perspective into how legal professionals draft such agreements, advise clients and deal with existing agreements. The Law Commission's project commenced on 1 October 2009 and it is anticipated that a report and draft Bill will be published in late 2012. The full research report upon which this article is based will be published on the Law Commission's website at the same time as the Consultation Paper.

Readers of Family Law will be extremely familiar with the recent court machinations on the subject of marital property agreements, which has led Wilson LJ to suggest that there is a 'lack of clarity in the treatment of pre-nuptial contracts under our present law' (Radmacher v Granatino [2008] EWCA Civ 649, [2009] 2 FLR (forthcoming) at para [128], hereafter referred to as Radmacher. For a detailed commentary, see J Miles, 'Radmacher v Granatino: Upping the ante-nuptial agreement' [2009] 21(4) CFLQ (forthcoming)). Although pre-marital and pre-registration property agreements made between spouses and civil partners (or those contemplating marriage or civil partnership) are not currently enforceable in the event of the spouses' divorce or the dissolution of the civil partnership, agreements are a material consideration under s 25 of the Matrimonial Causes Act 1973 (MCA 1973) particularly in light of the Court of Appeal's decision in Radmacher. This article will highlight some of the main findings from the research study, particularly in relation to practitioners' experiences of agreements and procedural and substantive issues arising from advising clients and drafting agreements. Any comments made during the course of this article are the author's own and do not reflect Law Commission policy.

To read the rest of this article, see November [2009] Family Law journal.

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