Reading researchers impact law reform proposals

Friday, 04 February 2011

Research carried out by two academics in the University's School of Law has been central to informing the development of the Law Commission's Consultation Paper on matrimonial property agreements.

Professor Elizabeth Cooke and Dr Therese Callus (with Professor Anne Barlow from the University of Exeter) 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 researchers' joint paper, Community of Property - a regime for England and Wales?  investigated 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 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.