All’s fair in love and law? The brave new world of ‘qualifying nuptial agreements’

At the end of February 2014, the independent statutory body whose job is to keep English law under review and to recommend reform — the Law Commission — released its long-awaited report titled ‘Matrimonial Property, Needs and Agreements’. This follows an extended four-year consultation period dating back to 2009.

The report presents to the British government recommendations on three specific areas of the law relating to the financial aspects of divorce and the dissolution of civil partnership, covering: marital property agreements (often termed ‘pre-nuptial’ agreements); ‘financial needs’ following divorce or dissolution; and non-matrimonial property.

The key headline is the proposed creation of a legal, enforceable basis for couples to contract with each other under English law. There is at present, notably, no recognition mechanism for foreign arrangements contemplated by the report and draft bill. It is likely therefore that couples who have availed themselves of equivalent arrangements in their ‘home’ jurisdiction will need to have consideration of the new English system at the top of their planning list alongside tax questions and the practical logistics of the move…

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