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Prenuptial agreements: the English position

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InDret
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  • Law

Abstract

PreNuptial Agreements: the English Position REVISTA PARA EL WWW. INDRET.COM ANÁLISIS DEL DERECHO InDret Prenuptial agreements: the English position Text of the Address Prepared For The ISFL Colloquium on Family Law Toledo, Spain, October 11, 2007. Nigel Lowe Cardiff Law School Cardiff University BARCELONA, JANUARY 2008 InDret 1/2008 Nigel Lowe Abstract English law has never developed a special regime for dealing with family assets and consequently has no notion of community of property. Whenever ownership of family assets are strictly in issue whether it be in the context of marriage or cohabitation regard is had to the ordinary rules governing property law which in our case rests upon the doctrine of separation of property. Grafted onto this basic position are the court’s wide distributive powers under the court can make property adjustment orders. Notwithstanding even more recent comments that prenuptial agreements are not enforceable it would be a mistake to think that English courts simply dismiss their relevance. Indeed, even before there had been indications that such agreements were a material consideration in deciding how property may be distributed after the divorce. Keywords: English Family Law; Prenuptial Agreements; Matrimonial Causes Act Summary 1. Introduction 1.1. General Background to the English Position 1.2. Clarification of Terms 2. Résumé of English Case-Law 3. Should the English Position be Reformed? 4. Table of cases 5. References 2 InDret 1/2008 Nigel Lowe 1. Introduction 1.1. General Background to the English Position To put the English position on prenuptial agreements into perspective some explanation of the general system for dealing with matrimonial property is required. In contrast to many (if not most) continental European legal systems, English law has never developed a special regime for dealing with family assets and consequently has no notion

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