As lawyers' caseloads now regularly include premarital/civil partnership agreements, the Law Commission's report on marital property agreements has been much anticipated by family lawyers nationwide. However the government has now extended the Law Commission's remit and the final report has been put back until sometime in 2013.
The Law Commission has expressed its delight at being asked to consider upon separation;
the extent to which one party should be required to meet the other's needs, and;
how non-matrimonial property is to be dealt with.
David Woodward, partner and Head of TLT's Family team comments; "Whilst having every confidence in the Law Commission, I would suggest that the task handed to them is of Herculean proportions when the foundation of English (and Welsh) family law is the exercise of discretion upon the unique circumstances of each case.
However, maybe the Law Commission will look north to our Scottish colleagues who don't seem to agonise over these matters as we do. The Family Law (Scotland Act) 1985 provides that matrimonial property has to be shared fairly.
Scottish law defines "matrimonial property" as property which has been accrued by either or both of the parties from the date of the marriage (not the date of cohabitation) until the date of separation. Assets gifted or inherited even during the marriage, are excluded from division.
As far as needs are concerned, under Scottish law, dependency lasts for no more than three years so there is no expectation of lifetime, or indeed any lengthy period of, maintenance payments.
Hercules, after successfully completing his twelve labours over twelve years, achieved immortality. Professor Elizabeth Cooke, the law commissioner with responsibility for family law, will, I am sure, produce a compelling report but, unlike Hercules, it is doubtful that her labours will enable her to achieve such mythical immortality."