ABSTRACT
Subject to the constraints of ss 23-25 of the MCA 1973, the court has a complete discretion as to how its powers to make financial orders should be exercised (including whether they should be exercised at all), since there is no regime of matrimonial property under the law of England and Wales. This is criticised by some jurists overseas who are constrained by an inflexible code of automatic matrimonial joint ownership. They claim that the English law of ancillary relief is defective in that it is inappropriate to the modern concept of matrimony as a partnership, since it is ‘a law of separation of assets’; and that it is illogical in a marriage partnership in which in theory there should be ‘community of property’ unless there are special reasons for contracting out of such a position. Prenuptial contracts make no difference to the discretionary nature of ancillary relief in English law, although they may be taken in account as part of all the circumstances of the case (see per Wall LJ in N v N (Jurisdiction: Pre-Nuptial Agreement) [1999] 2 FLR 745; and F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 47, where Thorpe LJ took the view that such contracts have limited significance, although Cazalet J in N v N (Foreign Divorce) [1997] 1 FLR 900 considered that they may be relevant). Wilson J in S v S (Staying Proceedings) [1997] 2 FLR 669 considered that the day of such contracts would come, probably in serial monogamy cases where the enforceability of such a contract was crucial to a marriage taking place at all. The suggestion in the government’s 1998 consultation paper, Supporting Families (Home Office, 1998), that prenuptial contracts should be made enforceable subject to specific conditions has not been implemented. The Family Division judges responded to the consultation paper in the March 1999 issue of the journal Family Law and distinguished them from the only similar pact now commonly taken into account by the court, namely the Edgar v Edgar ([1980] 1 WLR 1410) maintenance agreement. The Solicitors Family Law Association (SFLA), which publishes pre-marriage precedents, seems to be broadly in favour of introducing some sort of financial agreement on marriage.
