Marital Property Agreements, The Family and The Law: Status and Contract?

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This thesis considers the balance between status, contract, the law and the family. The increasing acceptance being demonstrated towards marital property agreements in this jurisdiction forms the basis for this examination. Enforceable marital property agreements w ould provide a contractual option to marriage, and thus alter the present balance between status and contract. Both concepts are currently present, although contract is repressed in favour of status. This thesis proposes that status and contract can exist within our system, despite these concepts being antithetical in nature. Furthermore, the work suggests the status-contract continuum as a tool upon which these concepts can be analysed. The aim of this work is to provide answers to the profound and fundamental questions which enforceable marital property agreements raise for English family law. The work begins by tracing the rules of public policy surrounding marital property agreements and the interpretation of status. It is suggested that this evolution has been evaded by recent decisions, and that this avoidance of history should be addressed prior to reform. Secondly, the nature of marriage is considered. If marriage becomes more contractual in nature then it is possible to contemplate what impact this may have on areas of family law which have been built upon this institution. The regulation of divorce, the restriction of legal provisions for separating unmarried couples and civil partnership have been examined. Each of these areas are placed on the status-contract continuum in order to assess the potential effect of adopting a more contractual approach. It is not suggested that any reforms should occur as a result of this change, but logical arguments are put forward as to what these changes might be. The role of the court in financial division is examined within this work. The vast discretion held by the court can be directly linked to the understanding of marriage as creating a legal status. The desire for private agreements is in part a symptom of the dissatisfaction towards our current system. It is suggested that a more fundamental reform of financial relief should occur prior to the creation of legislation concerning marital property agreements. The possible models for reform are explored, and proposals are made as to the most suitable way forward which encompasses a balance between status and contract.


Original languageEnglish
Awarding Institution
  • Osian Rees (Supervisor)
Award date2012