Matrimonial property reform in the wake of Radmacher
11 Tuesday Sep 2012
The Law Commission today launched an extended consultation paper on reform of divorce law in England and Wales; specifically the allocation of matrimonial property. The consultation describes the law as “fundamentally flawed” in its inconsistent approach to calculating needs and standard of living in relation to financial support, and points out that press coverage on the subject tends to give the impression that women are unfairly rewarded in this area. Previous consultations have also shown that practitioners find marked differences in judicial discretion by geographical region, with 57% of solicitors that responded admitting to issuing proceedings in a certain court as they believed the result would be more favourable for their client.
The Law Commission will publish recommendations for reform from the consultation next autumn, which will include recommendations from an earlier consultation about pre-nuptial agreements. Commentators expect pre-nups to feature heavily in the reforms following the Supreme Court ruling in Radmacher (formerly Granatino) v Granatino  UKSC 42, the settlement in which gave decisive weight to the pre-nuptial contract between the parties. The abstract of the consultation states that although such agreements are not at the moment strictly enforceable, following Radmacher the court may have regard to them in determining what financial orders to make. The Law Commission propose to take this further by calling for statutory regulation on these contracts – para 5.64 onwards concerns the appropriate level of provision that would have to be made in order that a qualifying nuptial agreement would not allow the parties to contract out of making provision for needs.