Reading law researchers impact upon marital property reforms
Release Date 04 February 2011
Research carried out by two academics in the University of Reading's School of Law has been central to informing the development of the Law Commission's Consultation Paper on matrimonial property agreements.
Empirical research carried out by Professor Elizabeth Cooke and Dr Therese Callus, with Professor Anne Barlow from the University of Exeter, explored the benefits and disadvantages of a European-style community of property regime for married and cohabiting couples, as compared with the system of separate property which exists in England and Wales.
The research was funded by the Nuffield Foundation and the report, Community of Property - a regime for England and Wales? published in 2006. Findings from this study have helped form the consultation paper that reviews the current law of marital property agreements, discusses options for reform and puts forward questions for consultees.
Professor Cooke is now serving as Law Commissioner for England & Wales and heads the Property, Family and Trusts Law team which has produced the Consultation Paper.
Under the current law, the redistribution of assets on divorce is heavily dependent upon the discretion of the court and pre-nuptial contracts are not legally enforceable in law. This contrasts with the position in many European countries, where legally binding matrimonial contracts are imposed by law, or chosen by the couple.
The Law Commission Consultation Paper reviews the way in which the current law resolves financial disputes in divorce and its treatment of marital property agreements. It then sets out the main arguments for and against reform.
Importantly, it asks whether couples should be able to make agreements which exclude the courts' powers to allocate property on divorce, and whether such agreements should be restricted to certain types of property (acquired before the marriage or inherited, for example). As the Community of Property project found, in other jurisdictions where contracts are enforceable, it is usual to define different types of property which may be excluded from agreement.
Professor Cooke said: "Pre-nups are a topical issue. Under the current law the starting point for the resolution of financial division on divorce is the discretion of the court. Some feel that where couples have reached agreement, the courts should not be involved; yet the courts' approach is primarily protective, and some feel that they should not be wholly excluded.
"Our consultation paper considers the arguments for and against reform and examines how a new approach might balance the desire of some couples to plot their own future with more certainty against the need for safeguards against exploitation and the creation of hardship. This is an issue that needs to be handled with care."
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Notes to editors
The School of Law at the University of Reading scored highly in the most recent (2010) National Student Survey for overall student satisfaction, and is now ranked 14th out of 91 universities by The Times Good University Guide 2010 (and 12th amongst English Universities).
In the most recent (2008) Research Assessment Exercise, the School was ranked joint 7th (along with Cambridge) for world-leading research and international excellence and came 11th out of 67 university Law Schools across all research categories. This, in particular, reflects the high academic standing of the School of Law's staff and impacts positively on the quality of both undergraduate and postgraduate teaching.