Fairness in Financial Disputes in Marriage Breakdown

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In dealing with financial disputes arising from the breakdown of a marriage, critically evaluate what “fairness” means and whether this concept is helpful or not. Consider whether the Law Commission’s proposals regarding the definition of needs and nuptial agreements represent a good way forward?

On divorce, the court must divide the assets and income of the parties. The resources that used to support one household is required to instead support two. It is well supported that judges have nonetheless been granted ‘wide discretion’ to decide what financial orders to make under the Matrimonial Causes Act 1973 (MCA), and to ensure that both parties are well supported upon relationship breakdown. The statute however fails to acknowledge “what is to be achieved”[1] and consequently has created a vast amount of ‘uncertainty’ in this area of the law.  Whilst it has nevertheless been accepted that different judges may quite properly reach different conclusions as to what the most appropriate order is in a particular case,[2] the House of Lords in Miller/McFarlene sought to articulate principles which would enable the court to exercise their discretionary powers under the MCA,[3] in a consistent manner.[4] It must be highlighted that the judicial objective in Miller/McFarlene[5] to achieve ‘fairness’ derived from Lord Nicholls judgement in White v White,[6] and has thus ever since been the guiding criterion for making orders under the MCA.[7] This research paper will critically evaluate the meaning of ‘fairness’ and consider whether this concept is helpful or not in divorce cases, and will assess whether the law commission’s proposals regarding the definition of needs and nuptial agreements represent a good way forward.

Lords Nicholls in the case of White suggested that to achieve ‘fairness’ the court would be tasked with eliminating “discrimination between husband and wife”[8] and ensuring there was “no bias in favour of the money-earner and the home-maker and child-carer”.[9] The case of Miller/Mcfarlene consolidated, improved and added further dimensions to the concept of ‘fairness’ derived from the case of White,[10] by creating three strands namely: needs, compensation and sharing the products of marriage.[11] Lord Nicholls stated that when a marriage ended ‘fairness’ required ‘that the assets of the parties were divided…to make provision for the parties’ housing and financial needs’.[12] It is widely accepted that meeting the needs of the parties is an important element of fairness in dealing with financial disputes,[13] as it acts as Baroness Hale and Lord Nicholls agreed, as the first step on the road to ‘independent living’[14] and provides for either parties essentials upon a divorce. Although some advocate that the need principle seems “eminently fair”[15] in comparison to the compensation principle, this view stemming from the idea that “the needs ‘of both parties’ are examined”[16] rather than just the homemaker or child-carer, a significant flaw in Lord Nicholls first strand to ‘fairness’ must be highlighted. Namely the ‘lack of a definition of financial needs’.[17] Whilst the court’s when determining the needs of the parties, irrefutably give high regard to the financial burden of any ‘children’ either of the parties may have,[18] it can be deduced that besides this factor there is no clear definition of needs. Whilst Baroness Hale suggested needs were to be “generated by the relationship”,[19] Lord Nicholls advocated that needs included those “not generated by the marriage”.[20] Consequently, with the courts subjective interpretation of the meaning of needs, it must be questioned how possibly Lord Nicholls approach to fairness can be supported, and how possibly the courts are to accurately assess and quantify needs consistently?

The uncertainty and difficulties associated with the needs strand to fairness led the Law Commission to propose reform in this area. The law commission propose that non-statutory guidance indicate as many elements of parties needs as possible, so that it is ‘easily accessible, clearly defined and cannot be argued’.[21] This proposal perhaps appears a good way forward. A list of factors on needs will mean the courts rather subjective and “loose”[22] interpretation to determining parties’ needs, will be replaced with a more ‘rigorous and clear’ approach that courts and lawyers can apply, and litigants consider. Whilst the Law Commission add that “guidance will discourage the use of discretion”,[23] this in turn may also advantageously reduce parties expense on lengthy court proceedings under the current law, and save judges time and energy to interpret needs for parties’ case to case. In addition, with it being suggested that ‘fairness requires consistency, principled shape and content’, perhaps a clearly defined definition of needs may be the first step towards achieving this.[24] This view may be given little weight however, ‘Resolution’ suggest that non-statutory guidance could quite simply be ‘dismissed by judges’,[25] leading to a continuation of the courts ‘inconsistent and discretionary’ approach to determining parties’ needs. Moreover, whilst the Law Commission propose non-statutory guidance defining as many elements of needs, it must be highlighted that there is no significant change nor amendment made by the Law Commission on this strand to fairness. This is despite the Law Commission suggesting that there was “ample evidence that change of some kind was needed” in this area.[26] This has for example been demonstrated in the Law Commission’s proposal to introduce a ‘single’ objective for the parties to achieve “independence” when determining party’s needs, rather than the current “multiple objectives” approach.[27] It is however already largely emphasised in the current law by Baroness Hale, that the court’s objective in financial dispute divorce cases is to achieve ‘independence’.[28] This has furthermore led many to then question whether the Law Commission is really that committed to achieving such an objective, since although the guidance proposes “clean breaks” to be granted where possible, the Law Commission have maintained a somewhat ‘status-quo’ approach to periodical payments in circumstances where parties needs cannot be met, advocating that while such payments can be varied[29] or terms attached to them,[30] they remain payable until remarriage, pension age or death.[31] It can therefore be construed that the Law Commissions proposals on needs continues to steer away from achieving independence for parties where needs cannot be met, the proposals do not broadly assist with developing law in this area and perhaps raises concern as to whether the Law Commission’s proposals on need, were even necessary.[32] With this being said, it can nonetheless be suggested that clarity as oppose to change indicates a good way forward for the Law Commissions proposal to define needs. Change can initiate a high level of criticism, time, cost and brain work to analyse a vast amount of law in this area. and most importantly may not always work in practice. On the matter of ‘time’, it in fact already appears at present as though the Ministry of Justice have created and “introduced financial guidelines for separating couples and unrepresented litigants”.[33] This therefore reflects the mere development of the proposals on need in this area, and suggests that clients may continue to see ‘uncertainty, inconsistency and judicial discretion’ in an attempt to achieve fairness.

Moving on from the Law Commission’s proposals on needs, the case of Miller/McFarlene ruled that if there is any excess income or capital once needs have been met, the courts can then consider the second strand of fairness, that of compensation.[34] Whilst Lord Nicholls proposes that compensation is aimed at “redressing any significant prospective economic disparity between the parties, arising from the way they conducted their marriage”,[35] Baroness Hale described compensation as being payable for “relationship generated disadvantage”.[36] Many are largely critical of the latter description and raise concern about its clarity. For example, John Eeklaar questions whether relationship generated disadvantage meant “any loss, or any opportunity foregone should be (fully) compensated”.[37] However, this would be largely unfair for the payer. Although there is disagreement on the meaning of the second strand to fairness, the compensation principle has provided a vast amount of assistance to the courts in determining fair outcomes for parties by reducing discrimination,[38] and by closing the gap on gender equality.[39] It can be suggested that the primary aim of fairness in the case of White[40] has therefore been to some extent, broadly achieved. Whilst Lord Nicholls addresses the concern that “women may suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as home-maker and child-carer”,[41] many have on the contrary disapproved the judgements of Miller/McFarlene as favoring or “shifting the balance towards wives” and therefore creating unfair outcomes for men.[42] This view has been largely supported with some advocating that the introduction of the compensation principle, whilst making “no difference to the level or nature of awards made”,[43] was intended to “ensure that courts did not overlook the effect on a spouse of a loss of career”.[44] Some in addition, even raise concern about the risks of double counting and “compensating the housemaker or child-carer twice over for the same disadvantage, but under different principles”.[45] Thus again creating unfair outcomes for the male partner to a marriage. Mary Welstead argues on the contrary however, that it is actually ‘women’ not men that are disadvantaged by Lord Nicholls second strand to fairness. Mary points out that any benefit which is received by the payee can be minimal in some respects, for example “the payee’s periodical payments end automatically upon them remarrying”.[46] Therefore suggesting that women are treated unfairly, as men are able actively seek ‘ways out’ of compensating their ex-wives upon divorce. As a solution to this, some academics propose that to achieve a fair outcome on compensation (particularly for women who tend to be the housemaker and child-carer), either a “clean break” lump sum payment should be payable to the disadvantaged party, or periodical payments continued for such period until the disadvantaged party has been fully compensated.[47] However besides this submission, there would still remain the issue that judges have in “assessing the extent of the applicants compensable losses”.[48] Elizabeth Cooke advocated that while it is suggested that domestic contributions could be valued by reckoning up the cost of buying in equivalent services of a housekeeper or nanny,[49] “the ‘services’ or contribution of dad or mum in terms of home-making, childcare and love, would be literally priceless”.[50] It can thereby be deduced that to put a price on a homemaker or child-carer’s contribution, may be largely unfair and an untrue reflection of what the homemaker really deserves. There has furthermore been a vast amount of criticism of Lord Nicholls proposal that ‘compensation’ and ‘need’ are distinct concepts.[51] John Eeekeler supports Baroness Hale’s perspective that compensation includes meeting needs,[52] and suggests that there seems to be only “two principles: compensation and sharing” rather than the three initially suggested.[53] This has led many academics to therefore question the usefulness of Lord Nicholls compensation strand, marking it as creating a vast amount of uncertainty for the courts on exactly how to differentiate between these two principles, and raising concern once again as to whether the courts have been given too much discretion to enable consistency in this area of the law, and to thus produce fair outcomes for the parties.

John Eeekeler refers to the third strand of fairness as “the ‘earned share’ principle”.[54] Such a principle was a development of the judgements in White v White[55] and suggested that where the parties “share their lives and live and work together, the share on divorce of either party should be equal, unless there is good reason to the contrary”.[56] John Eeekeler appears to be critical of this particular strand to fairness, favouring compensation instead, he argues that “it seems inappropriate to view a person as having a quasi-proprietary interest in the products of another’s talent and effort”. Some weight may be attached to such an argument given that the ideology of compensation is perceived justice. One is being provided with what they say they are rightly owed which therefore appears ‘fair’, whilst the sharing principle acts to the contrary. Further censure exists of the sharing principle with it being regarded “inconsistent” and “uncertain” just as the concept of fairness has.[57] Such labels have derived from Lord Nicholls failure to acknowledge the need for an “invariable rule”,[58] on the order in which each of the strands to fairness are to be assessed and quantified by the courts.[59] It remains unknown to lawyers whether they should first work out needs and then decide on compensation and sharing, or work out a sharing of the assets and then consider the meeting of needs.[60] In addition, whilst Baroness Hale confirmed in her judgements that the sharing principle was to be applied to short marriages,[61] some have disapproved of such an approach, “particularly where either party have suffered little to no detriment”.[62] Adding to this argument, it can be suggested that the parties are for example much more likely to have ‘intermingled and collectively’ enjoyed the fruits of their assets during a longer marriage. The unfairness of the sharing principle having been applied to short marriages in the same way that it is applied to long marriages, has been reflected in the recent 2015 case of Julie Sharp.[63] After a childless four-year marriage, Judge Sir Peter Singer awarded an approximate 40% award of the breadwinners assets in favour of their partner, despite the partner making no contribution as the ‘homemaker or child-carer’ throughout the marriage.[64] This hereby reflects the uncertainty as to the approach to be taken on the sharing principle, the wide-discretion of the courts and as a consequence, the unfair results that can in nearly eventuality be determined by judges on behalf of the parties concerned.

Further weight can be attached to the argument that the sharing principle to fairness has not been helpful. Lord Nicholls fails to address various concerns in his judgements, namely whether the sharing principle is to operate as a presumption[65] or as a starting point,[66] and in clarifying what property the sharing principle was to be applied to. Was it to apply to business assets and family assets,[67]  or solely family assets?[68] Was the principle to apply to matrimonial property only,[69] or non-matrimonial property as well?[70] Despite these unanswered questions, it can nevertheless be claimed that the third strand to fairness has particularly assisted the courts, it has for example provided an aid in the form of the ‘yardstick of equality’[71] and has led to the introduction of various justified reasons to depart from equality,[72] producing what some may suggest as being largely fairer outcomes. The courts have been found to depart from equality in instances where “inherited property is acquired before or during marriage”,[73] or where a party has made an ‘extraordinary contribution’ to the marriage for example. Thorpe LJ confirmed that this would be considered in the most ‘exceptional’ cases,[74] where exceptional business people have had a ‘spark of genius’.[75] The court’s approach in recognising that it would be ‘inequitable’[76] to not alter an equal division of assets in favour of the money-maker, where their knowledge, skill and determination has allowed them to acquire such assets, can hereby be regarded as a somewhat justified approach to enabling fairness in financial dispute cases. However, the fairness of ‘extraordinary contribution’ as a departing factor can be somewhat undermined. Thorpe LJ pointed out a sense of discrimination against the home-maker in this particular ‘departing’ factor, suggesting that there is only an assessment of the money-maker’s contribution.[77] This raises concern on whether the departing factors to equality really do act as a ‘wholly helpful tool’ to bring about fairness between parties since according to Elizabeth Cooke “fairness means non-discrimination”.[78] Furthermore, on the matter of big money cases, Margaret Rymnar noted how “the courts perception of fairness plays a lesser role in the average divorce case…whereas big money divorce cases present particular challenges to English courts”.[79] Margaret appears to be highlighting the challenges the courts face in being granted too much discretion to decide a fair outcome in big money cases, with judges having in addition to the needs strand of fairness, to consider compensation and the sharing principle as well. Whilst Margaret also questions whether it is fair for the courts to treat limited and big money cases so differently,[80] it can be somewhat inferred that the courts approach to evoking a fair assessment is as equally subjective in big money cases, as it is in limited means divorces.

Moreover, although the judgements of White and Miller/McFarlene provides some guidance on the concept of fairness, ‘courts, judges and lawyers’ still question it’s meaning and usefulness. In JL v SL (2015)[81] Mostyn J stated, “it is a truism that the ultimate judicial objective in ancillary relief cases is to achieve a ‘fair’ outcome. But, in such a case, what is fairness?” Whilst some advocate that fairness means the judge’s objective assessment and not the parties’ subjective assessment of what they think might be fair,[82] it can be argued that a judge’s assessment of fairness regardless of their attempt, inevitably becomes subjective.[83] For example, whilst Lord Nicholls created the 3 strands to fairness, his Lordship himself accepted that this concept was not of enormous assistance: as he put it, ‘fairness, like beauty, lies in the eye of the beholder’.[84] This supports the view that different minds reach different conclusions on what is a fair division of assets and income between the parties case to case, and highlights that there is no clear, single answer to Mostyn J’s question, neither an ability for the courts to achieve consistency in this area of law. Likewise in Miller/McFarlene, Lord Nicholls once again critical of his self-created concept stated that: ‘Fairness is an elusive concept…ultimately it is grounded in social and moral values’.[85] This again highlights judges’ difference of opinion and views on what they may perceive to be fair, and supports the idea that “what fairness demands is dependent on the context of the decision”[86] and a judge’s “intuition” on the day.[87] Although in recent reported cases there is much talk to ensure there is fairness in this area, supporting Lord Nicholls perspective is Mary Welstead, who also advocates that such an objective “is judicially unachievable given the relative, and elusive, nature of fairness and because of the very nature of marriage and divorce”.[88] Mary may hereby be referring to the varying nature of relationships, the idea that marriage has its ups and its downs, (‘for better or for worse’).

The reliability of the concept of fairness has been somewhat devalued by many visible areas of divorce law, that still bring about what some would argue to be unfair outcomes. While the court was in a place where spouses could be penalised if they were to “blame” for the breakdown of a marriage by means of ‘adultery’ for example,[89] and the guilty party’s award adjusted depending on the severity of their wrongdoing,[90] Joshua Rozenburg highlights the widespread disappointment and unfairness of Britain’s departure from fault based divorces,[91] replacing it with the court’s mere consideration of only the most ‘obvious and gross misconduct’.[92] To expand on this, if someone has been wronged in marriage as slight as it may be to the courts, surely it seems only fair for the victim to be compensated for the upset and distress that this has caused them.[93] Furthermore, whilst many support the view that the ‘broken glass ceiling’ principle derived from the case of White v White,[94] closed the gap on discrimination by largely benefiting homemakers and child-carers,[95] it must be again be questioned whether the circumstances have largely reversed, so that men are now victim to discrimination by means of the courts approach to fairness. For example London has been in recent years regarded as the ‘divorce capital of the world’.[96] While other European countries expect women to return to work and support themselves after the breakdown of a marriage, it has been advocated that England has experienced a ‘counter-feminist revolution in recent years’.[97] One writer suggests that it has become normal for women “to lay claim to all the assets their husbands have brought to the marriage, and even future earnings, as well as being supported by them for the rest of their lives.”[98] This view is noticeably demonstrated by the decision made by judges in a variety of cases, from White[99] to McCartney[100] and from McCartney[101] to Charman.[102] Perhaps it can be argued that there is no wonder why the law relating to fairness has been variously described as “a triumph for women; a disaster for wealthy men; and as a trigger for reform of the law relating to pre-nuptial agreements”.[103]

Despite there being no clearly defined meaning to fairness, the fact that so many lawyers attempt to apply and define such a concept perhaps proves that fairness is to be considered as being of paramount importance in divorce cases. It can be advocated that while the concept of fairness attempted to assist by maintaining a positive objective for the courts and to give them shape and direction, it has instead added to what is arguably a ‘broken, largely useless discretionary machine to solving financial disputes on relationship breakdown’. On the evidence considered the concept of fairness has gravely failed. It has been largely argued that “judicial discretion to achieve a fair outcome, taking into account the s25 factors, plus judicial creations such as sharing and compensation, combine to make it difficult to predict the result”. It is therefore highlighted how often the answer to the client will be “well, it depends” and “it should be somewhere in this (rather large) bracket”[104] and so whilst the concept has got lawyers talking, it has also got them and not to forget the clients, irrefutably confused. Achieving consistency in this area of the law by use of the ‘fairness’ concept therefore appears a somewhat erroneous decision by the courts. As many rightly contend “the Act never attempted to be fair”.[105] Whilst the law relating to the financial consequences of divorce has developed over some decades,[106] perhaps “it is time for a complete overhaul of the law relating to ancillary relief on divorce”.[107] These highly critical views and opinions have led the Law Commission to propose further reform, with suggestions that a higher regard given to ‘nuptial agreements’, may just be the courts best way forward.

Traditionally, pre-nuptial settlements were not enforceable in English Law.[108] The scepticism of the courts being largely a result of strict “public policy and a reluctance to allow the parties to a marriage, to enter into a contract purporting to deprive the courts of its jurisdiction”.[109] Nuptial agreements for the breakdown of marriage have therefore long been identified as a “threat to trust”[110] and contradictory to the status of marriage being “a long-term commitment”.[111] The case of Radmacher v Granatino indicated a change in attitude to the court’s approach to marital agreements.[112] The English public policy rule on marital agreements were regarded “odd” and “obsolete” [113] and the majority held in the case of Radmacher that the court should give effect to nuptial agreements “freely entered into by each party, with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.[114] Such a case has not only provided Supreme Court guidance on matters relating to English marital agreements, but has led to the removal of strict English public policy.[115] This case has in turn acted as the structure and framework to the Law Commissions proposals on marital agreements, allowing them to develop and build on the boundaries presented in this case. The Law Commission’s proposals on marital agreements therefore at first instance and on the face of it, appears a good way forward from the courts discretionary approach to a fair division of assets.

The Law Commission provides “a draft Nuptial Agreement Bill[116] to introduce Qualified Nuptial Agreement’s (QNA’s)”.[117] Qualifying Nuptial Agreements are deemed a reliable way for couples to decide in advance how their property should be shared on separation, “without having the fairness of their agreement scrutinised by the court”.[118] The Law Commission recommend that agreements will only qualify and protect parties’ property if certain formal requirements are met (safeguards). For example, the agreement must be contractually valid and enforceable,[119] made by deed,[120] and at the time of making the agreement both parties must have received full disclosure of their partner’s finances and obtained independent legal advice.[121] As part of the Law Commission’s proposals on nuptial agreements, they highlight that as a minimum they must make provision for either party’s financial needs,[122] and that where there is failure to meet this expectation the division of both parties’ property, will then be subject to the courts control.[123]

In assessing the Law Commission’s proposals on safeguards, the General Attitudes to Pre-Nuptial Agreements Survey carried out by Anne Barlow recognised that “94% of the national sample thought it was…important for both parties making a binding pre-nuptial agreement to take legal advice”.[124] Whilst the Law Commission make provision for either party to have obtained ‘legal advice’ in their proposals, and have suggested that their “safeguards are stricter than those generally applied by states in the United States”,[125] one must highlight why on the facts of Radmacher[126] such a provision was omitted.[127] Jonathon Herring points out the importance of such “safeguards not being optional even in cases when they are not necessary”.[128] This raises concern about the courts loose approach to safeguards[129] and questions whether the Law Commission’s proposals on marital agreements are the best way forward. Adding to this view was Elizabeth Cooke who advocated that “no formal requirements can guarantee that an agreement will not be made under pressure”.[130] This statement particularly raises concern about the pressures that a low earning party to a relationship (primarily women) may feel signing such an agreement. It must be advocated that where the current discretionary and fair divorce law system was at a point of closing the gap on ‘gender equality’, nuptial agreements are instead undermining the implementation of such a principle and taking judges back to a point in law prior to the case of White,[131] where the gap of gender equality was rather long stretched.[132] For example, homemakers (who are usually women) will generally have less knowledge about finance and property and will inevitably struggle to get the better end of the bargain. Furthermore, people (arguably women) “are willing to agree when they are in love, to things that they would not otherwise contemplate”.[133] Although the Law Commission address such concerns by referring to their needs safety net,[134] it must be suggested that moving forward more be done to address the unfairness and visible imbalance between men and women that could be created by entering nuptial agreements.

Whilst 58% of a National Questionnaire Sample agreed that ‘binding nuptial agreements are a good way of allowing couples to decide ‘privately’ what should happen in the event of a divorce”,[135] it must be questioned why so many people are so greatly in favour of replacing what many appear to suggest, is the court’s current ‘uncertain, discretionary and long winded’ approach to dividing assets fairly between the parties upon relationship breakdown? Andrew Newburry, head of family law at Pannone LLP, said that reforms would bring “clarity for couples” and “would lead to fewer relationships ending in damaging court battles”.[136] Jo Edwards (Resolution Vice Chairman) advocates that the Law Commission’s proposals on “pre nups have given people confidence that marital agreements will be upheld” and “should also reduce the burden on courts”.[137] Although it is uncertain whether Jo’s reference to burden is on the court’s endless journey to determining a ‘fair’ outcome for the parties, or whether it particularly refers to the court’s incessant struggle to gauge exactly how marital agreement cases should be agreed, it can be highlighted that proposals by the Law Society for reform on law relating to pre-marital contracts, date as far back as (2003).[138] If this does not answer such a question, the additional arguments that a party’s desire to organise their financial affairs can largely reduce “litigation and attendant cost”,[139] and potentially avoid the “stress”[140] and “uncertainty of future court proceedings”,[141] may possibly just.

Despite, the Law Commission’s proposals on Qualifying Nuptial Agreements having been largely favoured, it must be examined whether their proposals to depart not only from the traditional English public policy rules, but the guiding principle of ‘fairness’ in divorce law is really such a good idea.[142] As has been determined in this research paper, the concept of fairness is useless as a principle for decision-making “without some notion of the criteria by which fairness is to be judged”.[143] Determined by the case of Radmacher[144] and approved by the Law Commission, is the view that fairness in the context of Qualifying Nuptial Agreements “is to be heavily conditioned by respect for autonomy”.[145] However, this leads many to raise the question as to how helpful the concept of autonomy is? Some have suggested that personal autonomy has an “inherent attraction”.[146] Arguably, this could be the replacement of the courts authoritative approach to making decisions for the parties as to their marital share on divorce, with the opportunity for the parties to instead have the freedom to decide for themselves. This was largely favoured by Ruth Deech[147] and Lord Wilson who recently advocated that the current law is “inappropriately intrusive into personal, adult, arrangements”, and that “parties should be allowed to elect the sort of marriage which they want.”[148] However, a warning has been issued in clearing the meaning of ‘autonomy’ in the context of nuptial agreements, the Law Commission confirm “it is the freedom to force one’s party to abide by an agreement when he or she no longer wishes to do so”.[149] The negative perception created by such a definition as it raises concern about the ethicality of the Law Commission’s proposals, makes one wonder whether ‘simply… the courts know best’,[150] and supports the view that perhaps nuptial agreements are not the best way forward.

It therefore follows on to suggest that the Law Commissions encouragement, for one to have the legal authority to force another to abide by a binding nuptial agreement, even where such an agreement may not reflect the changing nature of their relationship (for example, where the parties may not have had any children at the point of signing the nuptial agreement, the parties may at the point of divorce have five), appears to be a somewhat ludicrous proposal, greatly unfair and unjustified, and a baffling suggestion by any standard in our English law. Marilyn Stowe further adds to this view claiming that “if the relationship breaks down, she may find herself trapped if she leaves, because of the constraints of the prenup”.[151] Further evidence from a recent study confirms that almost 66% of the ‘ever divorced’ agreed with the statement that binding nuptial agreements are a bad idea, “because it is too difficult to predict what will be fair at the end of a marriage”.[152] Supporting this view is both Jonathon Herring and Baroness Hale,[153] whom equally agreed that “family life required a post-hoc resolution of what is an appropriate settlement when the situation is actually known at the point of divorce.”[154] The Law Commission respond to such concern by acknowledging the safety net provision for parties’ financial needs,[155] addressing the binding nature of agreements in other jurisdictions,[156] and by also offering the flexibility for parties to mutually revoke such agreements.[157] It can however be suggested that the safeguard of needs, may not nearly replace the settlement that could be achieved by a court’s current discretionary approach to fair sharing. This therefore highlights a visible weakness in the Law Commission’s proposals to create a binding nuptial agreement. Moving forward the Law Commission could perhaps consider “a sunset clause approach” instead,[158] offering scope for the agreement to be renewed after a period of time, to represent what the parties believe is fair at that point in their relationship. The notion of ‘fairness’ therefore being returned to, even in the context of nuptial settlements where the parties are making decisions for themselves and the courts have no discretion to decide for them.

Although the Law Commission have also made provision for MCA[159] alterations[160] with the introduction of the Nuptial Agreements Bill, it must be questioned whether England really is that ready for such a big culture change to relationship law.[161] Joanna Miles noted how the Supreme court’s decision in Radmacher v Granatino received a mixed press, with various academics claiming that it marked the ‘beginning of the end of marriage’,[162] and that such proposals were to ‘desecrate marriage’s distinctive legal status leaving it little different from cohabitation”.[163] Moreover, in the General Attitudes to Pre-Nuptial Agreements Survey, consultees were asked “thinking of your own marriage or most recent, if the law permitted making binding nuptial agreements, would you have done so?”[164] It was revealed that 80% confirmed they would not. Whilst this implies that the Law Commission’s proposals do not appear a good way forward and that England are not prepared for such a culture change to marriage, there are many who can be said to largely disagree with this view. For example, nuptial agreements would appeal to those who are critical of the courts recent “move towards equal division of assets”,[165] and the very many who are critical of the idea that maintenance, usually to the wife, can be “a meal ticket for life.”[166] Furthermore, many Family legal advisers already have much experience “in drafting pre and post nups that they think the court will uphold”.[167] Although the Law Commission’s proposals may mean that some lawyers ‘will be required to brush up on their contract law’,[168] other lawyers such as Alison Hames (Irwin Mitchell) have regardless been excited by the prospect of such proposals turning “case law[169] into law”.[170] Whilst there appears to be a ‘divided opinion’ on the relationship culture that England should withhold, such an opinion appears to also be held by the Ministry of Justice (MOJ). In their recent update three years after their initial proposals were published, the MOJ stated that they were currently “still considering the recommendation”.[171] Despite Marilyn Stowe suggesting that the MOJ will eventually brush aside qualifying nuptial agreements since their “hands are fully occupied by the manifold complexities of Brexit”,[172] it can be advised that as a middle-ground alternative, Herring, Harris and George’s less radical approach “to treat the making and existence of an ante-nuptial agreement, as one of the material ‘circumstances’ under s25 MCA”,[173] may just appear an even better way forward than those rather strict contractual nuptial agreements suggested by the Law Commission.

This research paper has critically evaluated the meaning of the concept of ‘fairness’ in the context of divorce. While it can be largely supported that in the context of divorce law, “there is as many definitions of fairness as there are husbands and wives”,[174] it has been established that fairness involves considering the needs of the parties, compensating those who have suffered economic disparity, and equal sharing of all the assets which have arisen from the marriage. There has however been a vast amount of disagreement as to what these principles mean and how these principles should be applied in the courts. Consistently achieving fair outcomes for both parties in all circumstances upon relationship breakdown, appears to be an impossible task in practice[175] and therefore an enormously unhelpful concept. Whilst the Law Commissions reform proposals on ‘needs’ may be seen as attempting to largely assist couples in limited means divorces, the Law Commissions proposals on nuptial agreements may on the other hand be seen as targeting ‘celebrities and the super-wealthy’.[176] It can therefore be purported that such proposals do not represent a good way forward, as they fundamentally leave a gap in the law by failing to acknowledge those couples who may neither be deemed as having limited, nor substantial assets. Consequently, such couples are more likely than not to be subject to the courts current largely uncertain, inconsistent discretionary approach to determining a fair outcome on the division of their assets. It can therefore be proposed that perhaps marital nuptial agreements for ‘all couples’, which makes provision for a ‘sunset clause’ could be the most appropriate solution for the courts. This would in turn encourage a close partnership between the principles of ‘autonomy and fairness’, and would appear having evaluated both the current law on financial disputes relating to relationship breakdown, and assessed the law commissions reform proposals, to be the best, most relevant, and most calculated way forward for the courts to control and regulate the law in this area.

Bibliography:

Journal Articles:

Mary Welstead, “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012]

John Eekelaar, “Property and Financial Settlement on Divorce – Sharing and Compensating” Family Law 754

Joanna Miles, “Charman v Charman (No 4) – making sense of need, compensation and equal sharing after Miller/McFarlane” [2008] CFLQ

Joanna Miles, “Marriage and Divorce in the Supreme Court and the Law Commission – for love or money? (2011) 74 Modern Law Review

Judith Bray, “Pre-nuptial agreements under scrutiny” [2009, Denning Law Journal, Vol. 21]

Barlow, Anne, Smithson, Janet “Is modern marriage a bargain? Exploring perceptions of pre-nuptial agreements in England and Wales” [2012, Vol. 24, Issue 3]

Harris, Peter G.; George, Robert H.; Herring, Jonathan ‘With this ring I thee Wed (terms and conditions apply) [2011]

Margaret Ryznar, “All’s fair in love and war: But what about in Divorce? The fairness of property division in America and English big money divorce cases” North Dakota Law Review [2010]

Elizabeth Cooke: “Miller/McFarlane: law in search of discrimination” [2007] Child and Family Law Quarterly,

George, R. H.; Harris, P. G.; Herring, J. ‘Pre-nuptial agreements: for better or for worse?’ (2009) [25]

C Paechter ‘Concepts of fairness [2013]

David Rossetenstein ‘Case Commentary – D v D – Equality, fairness, risk and the distribution of share options on divorce’ Child and Family Law Quarterly’ Vol 14, No 2 [2002]

Jens M Scherpe, ‘Marital Agreements, Private Autonomy and Fairness’ Cambridge Law Journal [2011]

Chris Brown and Mary Hobbs, ‘Ancillary Financial Relief and Fat Cat Divorce’, Modern Law Review [2003]

Textbooks:

Harris-Short S, Miles J, and George R, ‘Family Law, Text, Cases, and Materials’ [3rd edn, Oxford University Press, 2011)

Herring J, Family Law (7th edn, Pearson Education Limited 2015)

Herring J, Family Law (Law Express, Pearson Education Limited, 2015)

Herring, Probert R, Gilmore S, ‘Great Debates in Family Law’ (2nd edn, Palgrave, 2015)

Talia S ‘How to Avoid the Divorce from Hell: And Dance Together at Your Daughter’s Wedding’ (2nd edn, Nexus Publishing Company, 2006)

Probert R, Family Law in England and Wales (Wolters Kluwer, 2011)

Online Journals:

Matthias Mueller ‘Law Commission’s Report on Matrimonial Property, Needs and Agreements’ < http://www.familylaw.co.uk/news_and_comment/law-commission-report-on-matrimonial-property-needs-and-agreements#.WQyZ8IWcHIU> [2014] accessed [April, May 2017]

Jane Longworth, Hayley Trim “Desperately seeking certainty. And fairness. And equality. And … The Divorce (Financial Provision) Bill” < http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/desperately-seekingcertainty-and-fairness-and-equality-and-the-divorce-financialprovision-bill#.WQ-9j4WcHIU> [2014] accessed [April 2017]

Spencer Clarke ‘The Law Commission’s Report on Matrimonial Property, Needs and Agreements’ <Spencer Clarke ‘The Law Commission’s Report on Matrimonial Property, Needs and Agreements’> (2014) accessed [April, May 2017]

Hayley Trim, ‘Hayley Trim’s Analysis: The Law Commission’s report on Matrimonial Property, Needs and Agreements’ < http://www.familylaw.co.uk/news_and_comment/hayley-trim-s-analysis-the-law-commission-s-report-on-matrimonial-property-needs-and-agreements#.WQ-7LoWcHIU> [2015] accessed [April, May 2017]

Marilyn Stowe, ‘Government ‘still thinking’ about prenups’ <http://www.marilynstowe.co.uk/2017/01/13/government-still-thinking-about-prenups/> [2017] > accessed 02 May 2017

Paul Reid, “When assets aren’t divided 50:50” [2012] < http://www.marilynstowe.co.uk/2012/07/06/when-assets-arent-divided-5050-by-paul-read/> accessed 27 April

Marilyn Stowe, ‘Z v Z: a prenuptial agreement in a post-Radmacher world’ < http://www.marilynstowe.co.uk/2011/11/18/z-v-z-a-prenuptial-agreement-in-a-post-radmacher-world/> [2011] > Accessed 29 April 2017

John Bolch, “How long must a marriage be before equal sharing applies?” (2017) <http://www.marilynstowe.co.uk/2017/03/02/how-long-marriage-equal-sharing/> accessed 1 May 2017

Marilyn Stowe, “Successful city trader seeks to cut husband’s payout” (2017) <http://www.marilynstowe.co.uk/2017/02/28/successful-city-trader-seeks-to-cut-husbands-payout/> accessed 1 May 2017

Lord Wilson “Changes over the centuries in the financial consequences of divorce” < https://www.supremecourt.uk/docs/speech-170320.pdf > [2017] accessed 07 May 2017

Online Newspaper Articles:

Lois Rogers, ‘Statesman Article: Divorce: do women win too much?’ NewStateman (19 February 2007)

Frances Gibb, ‘The Times Newspaper Article- pre nup divorce law hake-up aims to reduce court battles’ The Times (2014)

Steve Lodge ‘The Financial Times: Are pre-nuptial agreements binding? Steve Lodge Wealth Questions’ The Financial Times (2009)

Emine Saner, ‘The Guardian Keen to leave your rich husband? Come to London, divorce capital of the world’ The Guardian (24 February 2015)

Joshua Rozenberg, ‘Balancing fairness and compensation’ The Telegraph (25 May 2006)

R Dyson, ‘English courts still top the league for generous divorce payouts’ The Telegraph (16 December 2013)

Emel Djevdet, Sehaj Lamba, ‘Prenuptial agreements and Radmacher’ The Law Society Gazette (24 March 2014)

Legal Reports:

Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014)

Ministry of Justice, Report on the implementation of Law Commission proposals, [HC 613, 2017]

Law Commission, Marital Property Agreements (Law Com No 198, 2011)


[1] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 1.22

[2] Piglowska v PiglowskI [1999] 2 FLR 763

[3] Matrimonial Causes Act 1973, s25

[4] Mary Welstead, “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012] 209, 219

[5] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [144] (Nicholls LJ)

[6] White v White [2001] 1 AC 596 [28] (Nicholls LJ)

[7] Matrimonial Causes Act 1973

[8] White v White [2001] 1 AC 596 [40] (Nicholls LJ)

[9] White v White [2001] 1 AC 596 [39] (Nicholls LJ)

[10] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [8] (Nicholls LJ)

[11] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [144] (Hale LJ)

[12] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [11] (Nicholls LJ)

[13] Matrimonial Causes Act, s25(2)

[14] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [144] (Hale LJ)

[15] Joanna Miles, “Charman v Charman (No 4) – making sense of need, compensation and equal sharing after Miller/McFarlane” [2008] CFLQ 378, 390

[16] Joanna Miles, “Charman v Charman (No 4) – making sense of need, compensation and equal sharing after Miller/McFarlane” [2008] CFLQ 378, 390

[17] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 1.20

[18] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [12] (Nicholls LJ)

[19] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [140] (Hale LJ)

[20] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [11] (Nicholls LJ)

[21] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 3.94

[22] Jonathon Herring, Family Law (7th edn, Pearson Education Limited 2015) 237

[23] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 3.76

[24] Sonia Harris-Short, Joanna Miles, and Rob George, ‘Family Law, ‘Text, Cases, and Materials’ [3rd edn, Oxford University Press, 2011) 457

[25] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 3.82

[26] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 3.3

[27] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 3.62

[28] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [144] (Hale LJ)

[29] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 3.108

[30] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 3.109

[31] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 3.107

[32] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) para 3.94

[33] Ministry of Justice, Report on the implementation of Law Commission proposals, [HC 613, 2017] 13

[34] Mary Welstead, “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012] 209,

[35] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [13] (Nicholls LJ)

[36] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [140] (Nicholls LJ)

[37] John Eekelaar, “Property and Financial Settlement on Divorce – Sharing and Compensating” Family Law 754 [para 5]

[38] Margaret Ryznar, “All’s fair in love and war: But what about in Divorce? The fairness of property division in America and English big money divorce cases” North Dakota Law Review [2010] 115, 136

[39] H V H (Periodical Payments: Variation: Clean Break) [2014] EWHC 760 (Fam)

[40] White v White [2001] 1 AC 596 (Nicholls LJ)

[41] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [13] (Nicholls LJ)

[42] John Eekelaar, “Property and Financial Settlement on Divorce – Sharing and Compensating” Family Law 754 [para 1]

[43] Law Commission, Marital Property Agreements (Law Com No 198, 2011) 2.56

[44] W v W [2009] EWHC 3076, [97]

[45] Joanna Miles, “Charman v Charman (No 4) – making sense of need, compensation and equal sharing after Miller/McFarlane” [2008] CFLQ 378, 389

[46] Mary Welstead, “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012] 209, 219 (para 2)

[47] Mary Welstead,  “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012] 209, 219 (para 2)

[48] Joanna Miles, “Charman v Charman (No 4) – making sense of need, compensation and equal sharing after Miller/McFarlane” [2008] CFLQ 378, 395

[49] Elizabeth Cooke: “Miller/McFarlane: law in search of discrimination” [2007] Child and Family Law Quarterly, Vol 19, No 1, [98, 101]

[50] Elizabeth Cooke: “Miller/McFarlane: law in search of discrimination” [2007] Child and Family Law Quarterly, Vol 19, No 1, [98, 101]

[51] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [15] (Nicholls LJ)

[52] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [140] (Hale LJ)

[53] John Eekelaar, “Property and Financial Settlement on Divorce – Sharing and Compensating” Family Law 754 [para 3]

[54] John Eekelaar, “Property and Financial Settlement on Divorce – Sharing and Compensating” Family Law 754 [para 4]

[55] White v White [2001] 1 AC 596

[56] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [16] (Nicholls LJ)

[57] Mary Welstead, “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012] 209, 215

[58] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [29] (Nicholls LJ)

[59] Elizabeth Cooke: “Miller/McFarlane: law in search of discrimination” [2007] Child and Family Law Quarterly, Vol 19, No 1, [98, 105]

[60] David Hodson, “The Miller’s wife and the breadwinner: lessons for lawyers in daily practice” (2006) < http://www.familylawweek.co.uk/site.aspx?i=ed2036> accessed 23 April [20]

[61] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [143] (Hale LJ)

[62] Mary Welstead, “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012] 209, 219

[63] Marilyn Stowe, “Successful city trader seeks to cut husband’s payout” (2017) <http://www.marilynstowe.co.uk/2017/02/28/successful-city-trader-seeks-to-cut-husbands-payout/> accessed 1 May 2017

[64] John Bolch, “How long must a marriage be before equal sharing applies?” (2017) <http://www.marilynstowe.co.uk/2017/03/02/how-long-marriage-equal-sharing/> accessed 1 May 2017

[65] B v B (Financial Provision: Welfare of Child and Conduct) [2002] 1 FLR 555

[66] Sonia Harris-Short, Joanna Miles, and Rob George, Family Law, Text, Cases, and Materials [3rd edn, Oxford University Press, 2011) 476

[67] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [23-25] (Nicholls LJ)

[68] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [149] (Hale LJ)

[69] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [150] (Hale LJ)

[70] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [23-25] (Nicholls LJ)

[71] Elizabeth Cooke: “Miller/McFarlane: law in search of discrimination” [2007] Child and Family Law Quarterly, Vol 19, No 1, [98, 100]

[72] Paul Reid, “When assets aren’t divided 50:50” [2012] < http://www.marilynstowe.co.uk/2012/07/06/when-assets-arent-divided-5050-by-paul-read/> accessed 27 April

[73] White v White [2001] 1 AC 596 [64] (Nicholls LJ)

[74] Lambert v Lambert [2002] EWCA Civ 1685 [46] (LJ Thorpe)

[75] Sorrell v Sorrell [2005] EWHC 1717 (Fam) [114] (LJ Bennet)

[76] Charman v Charman (No. 4) [2007] EWCA Civ 503 [79] (LJ Potter)

[77] Lambert v Lambert [2002] EWCA Civ 1685 [45] (Thorpe LJ)

[78] Elizabeth Cooke: “Miller/McFarlane: law in search of discrimination” [2007] Child and Family Law Quarterly, Vol 19, No 1, [98, 100]

[79] Margaret Ryznar, “All’s fair in love and war: But what about in Divorce? The fairness of property division in America and English big money divorce cases” North Dakota Law Review [2010] 115, 141

[80] Margaret Ryznar, “All’s fair in love and war: But what about in Divorce? The fairness of property division in America and English big money divorce cases” North Dakota Law Review [2010] 115, 141

[81] JL v SL [2015] EWHC 360 (Fam) [11] (LJ Mostyn)

[82] Jonathon Herring, Family Law (7th edn, Pearson Education Limited 2015) 233

[83] Lambert v Lambert [2002] 3 FCR 673 [39] (LJ Thorpe)

[84] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [1] (Nicholls LJ)

[85] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [4] (Nicholls LJ)

[86] R v Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8, [1994] 1 AC (Mustill LJ)

[87] R v Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8, [1994] 1 AC [15] (Mostyn LJ)

[88] Mary Welstead, “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012] 209, 218

[89] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [59-65] (Nicholls LJ)

[90] Wachtel v Wachtel [1973] Fam 72

[91] Joshua Rozenberg, ‘Balancing fairness and compensation’ The Telegraph (25 May 2006)

[92] Matrimonial Causes Act, s25(2)(g)

[93] H v H (Financial Relief: Conduct) [1994] 2 FLR 801

[94] Miller v Miller; McFarlene v McFarlene [2004] UKHL 24 [8] (Nicholls LJ)

[95] Jonathan Herring, Rebecca Probert, Stephen Gilmore, Great Debates in Family Law [2nd edn, Palgrave, 2015] 276

[96] Emine Saner, ‘The Guardian Keen to leave your rich husband? Come to London, divorce capital of the world’ The Guardian, (24 February 2015)

[97] R Dyson, ‘English courts still top the league for generous divorce payouts’ The Telegraph (16 December 2013)

[98] Lois Rogers, ‘Statesman Article: Divorce: do women win too much?’ NewStateman (19 February 2007)

[99] White v White [2001] 1 AC 596

[100] McCartney v Mills-McCartney [2008] 1 FCR 707 [322] (LJ Bennet)

[101] McCartney v Mills-McCartney [2008] 1 FCR 707 [322] (LJ Bennet)

[102] Charman v Charman (No. 4) [2007] EWCA Civ 503 (LJ potter)

[103] Mary Welstead, “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012] 209, 209

[104] Jane Longworth, Hayley Trim “Desperately seeking certainty. And fairness. And equality. And … The Divorce (Financial Provision) Bill” [2014] (para 3)

[105] Mary Welstead, “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012] 209, 218

[106] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 1.2

[107] Mary Welstead, “Miller v Miller; McFarlene v McFarlene [2004] UKHL 24, Fairness Remains an Elusive Concept – Financial Provision on Divorce” [2012] 209, 218

[108] Radmacher v Granatino [2010] UKSC 42 [31] [LJ Phillips]

[109] Judith Bray, “Pre-nuptial agreements under scrutiny” [2009, Denning Law Journal, Vol. 21] 131, 131

[110] Barlow, Anne, Smithson, Janet “Is modern marriage a bargain? Exploring perceptions of pre-nuptial agreements in England and Wales” [2012, Vol. 24, Issue 3] 304, 317

[111] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.25

[112] Radmacher v Granatino [2010] UKSC 42 [LJ Phillips]

[113] Radmacher v Granatino [2010] UKSC 42 [75] [LJ Phillips]

[114] Radmacher v Granatino [2010] UKSC 42 [75] [LJ Phillips]

[115] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 4.28

[116] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.85

[117] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.40

[118] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.30

[119] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 6.12

[120] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 6.36

[121] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 6.125

[122] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.30

[123] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.30

[124] Barlow, Anne, Smithson, Janet “Is modern marriage a bargain? Exploring perceptions of pre-nuptial agreements in England and Wales” [2012, Vol. 24, Issue 3] 304, 308

[125] Elizabeth Cooke, “The Law Commission’s Report on Matrimonial Property, Needs and Agreements” [2014, Vol. 48 Issue 2] para 33

[126] Radmacher v Granatino [2010] UKSC 42 [LJ Phillips]

[127] Harris, Peter G.; George, Robert H.; Herring, Jonathan ‘With this ring I thee Wed (terms and conditions apply) [2011] para 10

[128] Harris, Peter G.; George, Robert H.; Herring, Jonathan ‘With this ring I thee Wed (terms and conditions apply) [2011] para 12

[129] Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44

[130] Elizabeth Cooke, “The Law Commission’s Report on Matrimonial Property, Needs and Agreements” [2014, Vol. 48 Issue 2] para 22

[131] White v White [2001] 1 AC 596

[132] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.18

[133] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.30

[134] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.26

[135] Barlow, Anne, Smithson, Janet “Is modern marriage a bargain? Exploring perceptions of pre-nuptial agreements in England and Wales” [2012, Vol. 24, Issue 3] 304, 307

[136] Frances Gibb ‘Pre nup divorce law shake-up aims to reduce court battles’ The Times (2014)

[137] Matthias Mueller ‘Law Commission’s Report on Matrimonial Property, Needs and Agreements’ [2014] 11

[138] Jonathon Herring, Family Law (Law Express, Pearson Education Limited, 2015) [75]

[139] George, R. H.; Harris, P. G.; Herring, J. ‘Pre-nuptial agreements: for better or for worse?’ (2009) [25]

[140] Spencer Clarke ‘The Law Commission’s Report on Matrimonial Property, Needs and Agreements’ (2014) para 17

[141] Elizabeth Cooke, “The Law Commission’s Report on Matrimonial Property, Needs and Agreements” [2014, Vol. 48 Issue 2] para 34

[142] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.34

[143] Joanna Miles, “Marriage and Divorce in the Supreme Court and the Law Commission – for love or money? (2011) 74 Modern Law Review 430 [438]

[144] Radmacher v Granatino [2010] UKSC 42 [LJ Phillips]

[145] Joanna Miles, “Marriage and Divorce in the Supreme Court and the Law Commission – for love or money? (2011) [74 Modern Law Review] 430, 437

[146] Harris, Peter G.; George, Robert H.; Herring, Jonathan ‘With this ring I thee Wed (terms and conditions apply) [2011] para 16

[147] Barlow, Anne, Smithson, Janet “Is modern marriage a bargain? Exploring perceptions of pre-nuptial agreements in England and Wales” [2012, Vol. 24, Issue 3] 304, 305

[148] Lord Wilson “Changes over the centuries in the financial consequences of divorce” [2017] 13

[149] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.33

[150] Radmacher v Granatino [2010] UKSC 42 [78] [LJ Phillips]

[151] Marilyn Stowe, ‘Z v Z: a prenuptial agreement in a post-Radmacher world’ < http://www.marilynstowe.co.uk/2011/11/18/z-v-z-a-prenuptial-agreement-in-a-post-radmacher-world/> [2011]

[152] Barlow, Anne, Smithson, Janet “Is modern marriage a bargain? Exploring perceptions of pre-nuptial agreements in England and Wales” [2012, Vol. 24, Issue 3] 304, 308

[153] Macloed v Macloed [2008] UKPC [Hale LJ)

[154] Barlow, Anne, Smithson, Janet “Is modern marriage a bargain? Exploring perceptions of pre-nuptial agreements in England and Wales” [2012, Vol. 24, Issue 3] 304, 305

[155] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 6.11

[156] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 5.39

[157] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) 6.190

[158] Barlow, Anne, Smithson, Janet “Is modern marriage a bargain? Exploring perceptions of pre-nuptial agreements in England and Wales” [2012, Vol. 24, Issue 3] 304, 311

[159] Matrimonial Causes Act 1973

[160] Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) [217]

[161] M v M (Prenuptial Agreement) [2002] Fam Law 177

[162] Joanna Miles, “Marriage and Divorce in the Supreme Court and the Law Commission – for love or money? (2011) [74 Modern Law Review] 430, 430

[163] Joanna Miles, “Marriage and Divorce in the Supreme Court and the Law Commission – for love or money? (2011) [74 Modern Law Review] 430, 444

[164] Barlow, Anne, Smithson, Janet “Is modern marriage a bargain? Exploring perceptions of pre-nuptial agreements in England and Wales” [2012, Vol. 24, Issue 3] 304, 315

[165] Judith Bray, “Pre-nuptial agreements under scrutiny” [2009, Denning Law Journal, Vol. 21] 131, 132

[166] Frances Gibb ‘Pre nup divorce law shake-up aims to reduce court battles’ The Times (2014)

[167] Elizabeth Cooke, “The Law Commission’s Report on Matrimonial Property, Needs and Agreements” [2014, Vol. 48 Issue 2] para 34

[168] Hayley Trim’s Analysis: The Law Commission’s report on Matrimonial Property, Needs and Agreements [para 7]

[169] K v K [2003] 1 FLR 120

[170] Matthias Mueller ‘Law Commission’s Report on Matrimonial Property, Needs and Agreements’ [2014] 17

[171] Report on the implementation of Law Commission proposals, Ministry of Justice, January 2017, page 14

[172] Marilyn Stowe, ‘Government ‘still thinking’ about prenups’ <http://www.marilynstowe.co.uk/2017/01/13/government-still-thinking-about-prenups/> [2017] 9

[173] Harris, Peter G, George, Robert H, Herring, Jonathan ‘With this ring I thee Wed (terms and conditions apply) [2011] para 27

[174] Sue Talia ‘How to Avoid the Divorce from Hell: And Dance Together at Your Daughter’s Wedding’ [2 edn, Nexus Publishing Company, 2006] 9

[175] Elizabeth Cooke: “Miller/McFarlane: law in search of discrimination” [2007] Child and Family Law Quarterly, Vol 19, No 1, [98, 100]

[176] Emel Djevdet, Sehaj Lamba, ‘Prenuptial agreements and Radmacher’ The Law Society Gazette (24 March 2014)

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