Drawing on our expertise in both private client and family law, Russell-Cooke has been closely involved in assisting the government's Law Commission in its review of marital property agreements, more commonly known as pre-nuptial agreements.
From our Private Client team, Richard Frimston is the chair of the Society of Trust and Estate Practitioner's (STEP) EU Committee which has provided a response to the consultation. Richard and his committee advised on the cross border issues that might arise in relation to any change to the English law, making particular reference to proposed EU regulations on Matrimonial Property.
The consultation includes the proposal that pre-nuptial agreements, which have hitherto been void for public policy reasons under English law, would have legal effect in relation to separation or divorce. Richard's committee however raised the question of how this would apply in relation to couples with strong links to foreign jurisdictions.
For example, if the parties to a marriage were closely linked to a jurisdiction where pre-nuptial agreements were considered void, would any agreement that they had entered into also be considered void if considered by the English court? Alternatively, would it be held valid in English proceedings if in a form that was valid under English law even if it was not valid in the foreign jurisdiction?
Richard and his committee sought to raise the government's awareness to the potential cross border issues that can arise in relation to pre-nuptial agreements, particularly in the light of developments in the EU. Their concern was that little thought had been given to the law in relation to pre-nuptial agreements and matrimonial property regimes in states outside of England and Wales. It was felt that the documents should conform to local law, subject to a minimum requirement that they would be a document dated and signed by all parties. The committee's full response can be found at the STEP website.
From our Family Law team, James Carroll along with academics and other senior professionals, was a member of the Law Commission's Expert Advisory Group and has had considerable input into the consultation. James also actively engaged in the preparation of The Law Society's response to the consultation through his membership of the Society's, Family Law Committee.
Further details will be added to this site when the reforms, if any, are announced.