Dr Jane Mair, Senior Lecturer (Law) at University of Glasgow and co-author of 'All Settled? A study of legally binding separation agreements and private ordering in Scotland?' considers the implications for Scotland on the recent recommendations from The Law Commission (England and Wales) for a Nuptial Agreements Bill.
The Law Commission (England and Wales) recently published their Report on Matrimonial Property, Needs and Agreements (LawCom No 343). The culmination of an extended project, they are recommending new legislation which would introduce “qualifying nuptial agreements” and have presented a draft Bill; the Nuptial Agreements Bill.
These recommendations and the proposed new legislation offer something very new for English law. Even with a clear message of support for agreements from the Supreme Court in Radmacher v Granatino 2010 UKSC 42, pre-nuptial and post-nuptial agreements between parties are currently not contractually enforceable.
For Scotland, this is nothing new. Marriage contracts – pre or post-nuptial – have long been established as enforceable and separation agreements in particular have become increasingly popular. A recent study of 600 separation agreements registered in Scotland in 2010, found that the use of agreements had almost doubled since 1992 (Mair, Wasoff and Mackay, All Settled? A study of legally binding separation agreements and private ordering in Scotland, 2013, ESRC). Thanks to a simple system of registration in the Books of Council and Session and without any need for court involvement - couples can easily enter into legally enforceable agreements which deal with the consequences of divorce, dissolution or separation.
So is there anything new for Scots law in what England is proposing? The flexibility and ease of the Scottish system may be the key to its success. It has grown organically, with little need for review, and the multi-purpose format of the registered Minute of Agreement accommodates agreements entered into at any stage in the relationship. Perhaps what Scots law should now do is reflect on some of the concerns and protections which are considered in detail in the Law Commission’s report. In distinguishing between pre-nuptial and post-nuptial agreements, for example, they comment (para 1.11) that:
“The former involve an element of prediction; the parties are setting out what they will need, and what they will be content with, in circumstances whose reality they may be unable to foresee. Separation agreements on the other hand deal with a known reality or at least one that is immediately anticipated”.
This is not a distinction which is highlighted in Scots family law. Aside from the general contractual scope for challenge, the only specific provision in Scots law allowing for setting aside or reduction of a “nuptial agreement” is to be found in section 16 of the Family Law (Scotland) Act 1985, which applies in the context of divorce and operates only “where the agreement was not fair or reasonable at the time it was entered into”. Section 16 applies “where the parties to a marriage have entered into an agreement as to financial provision to be made on divorce”; held in Kibble v Kibble 2010 SLT (Sh Ct) 5 to include an ante-nuptial agreement, which purported to provide for possible future divorce. While parties who enter into private agreement can feel reassured that the terms will be enforceable, they do need to consider carefully the long term effects. What seemed fair and reasonable to them prior to marriage may not look so attractive – to one party at least – on divorce.
There is nothing new for Scots family law in the idea of openness to legally binding nuptial agreements but it might do no harm to take a new look at an old form.
Read the CRFR briefing: Legally binding agreements: property division and child care when relationships break down.
Read the full report: All Settled? A study of legally binding separation agreements and private ordering in Scotland? Final Report.
Contact Jane Mair
Showing posts with label (re)marriage. Show all posts
Showing posts with label (re)marriage. Show all posts
Tuesday, 4 March 2014
Monday, 9 September 2013
Breaking down the finances of breaking up
Dr Jane Mair on new research on separation agreements in Scotland. Private settlements have increased but public money should ensure everyone has access to legal advice.
Scots family law has a long history of contracts being used to regulate relationships – ante-nuptial (that’s what the English call pre-nups), post-nuptial, marriage settlements, separation agreements – there are examples of all of these being used widely and legally recognised going back centuries.
In the 19th century, no wealthy couple – except the most foolish or reckless – would have considered getting married without a carefully drafted marriage contract.
In the days when divorce was much more difficult, expensive and less socially acceptable than it is now many married couples would have formalised the end of their life together by means of a separation agreement. That way, without the final, costly, step of legal divorce, they would have been able to sort out their debts, make provision for maintenance of the wife and children and agree how to share the furniture – not to mention signaling to the outside world that they were no longer a couple. That was important because in those days a wife could “pledge her husband’s credit for necessaries” – ie buy food at the corner shop on her husband’s slate.
Marriage, family life and law have changed a lot since then, but far from being out of date, contracts and private settlements are still big news in Scots family law.
Separations agreements doubled in a decade
We have just published a report into the use of separation agreements and, as expected, they are being used to a significant extent. Our study looked at a sample of 600 written agreements from 2010 and from that sample we estimated that, in relation to divorce statistics for that year, there is the equivalent of roughly one agreement to every two divorces. That’s almost twice as many as were being made in 1992 – the last year there was any research into these agreements in Scotland.
Separation agreements are no longer used as an alternative to divorce in the way they were in previous centuries. They are used now in conjunction with divorce actions. You still need to apply to court for the divorce itself but everything else can be sorted out privately, by agreement - property, money and children. Assuming, of course, that you can agree!
One of our findings was that in coming to agreement, women are in danger of losing out financially later in life. Women’s decision about whether to retain the family home or renounce their entitlement to a partner’s pension might make sense in the here and now, but may have a long-term negative impact on their income.
While the majority of women still take on the care of children, there appeared to be little recognition of the financial cost that such care brings and a significant number of women said they were struggling financially following separation.
Separation agreements have grown in popularity and appear to serve families well. The number of separation agreements has doubled since 1992 and the majority of agreements we looked at were being stuck to. A key factor highlighted by many was the need for access to good, affordable legal advice. To make sure that everyone benefits from this way of arranging post-separation life, we need to make sure it’s not just the wealthy who can afford to make the best arrangements.
Media coverage in The Herald 9 August 2013
Contact: Jane Mair
Monday, 5 March 2012
Enduring love?
Professor Lynn Jamieson, Co-Director at CRFR spoke at the launch of the Enduring Love project in January. As an affiliate organisation we thought it would be a good opportunity to give this very interesting research project and their questionnaire a plug!
Complete the questionnaire and find out more at: http://www8.open.ac.uk/researchprojects/enduringlove/
Thursday, 19 March 2009
Relationships still matter to Scotland’s new parents
Sarah Morton, CRFR Co-director and Lynn Jamieson, CRFR Co-director
New Registrar General figures released last week show that for the first time in Scotland more than half of babies were born to unmarried parents. Interestingly we are not the first part of the UK to reflect this change, with Wales reaching this point in 1993.
The news has been greeted with the predictable ringing of hands about the state of the family and concern about the plight of children born into these kinds of families. But what does this figure tell us about the root of these concerns - whether or not children are being born into stable, loving, long-term relationships?
Most of the 50.1 % of children in the headlines will be born into couple households where the couple are living together unmarried, rather than being born to solo mothers. The Registrar General’s report shows that the proportion of births registered only in the mothers name is just 6% and has remained fairly constant for over twenty years. Since 1995 a record has been kept of whether an unmarried mother and father registering a birth live at the same address. According to Scottish Government figures, as the proportion of married parents has shrunk so there has been an equivalent increase in births to parents living together. In 2007, 32% of births are jointly registered to parents living at the same address, 11% to parents at separate addresses and 6% by mothers alone.
It is now normal for most couples in Scotland to live together before they get married, and attitude surveys show that only a very small proportion of the population make any moral distinction between living together as couple and marriage. It may be that living together is seen as a sensible ‘testing’ of a relationship before making a fuller commitment. Or developing a sexual relationship and living together may have become ways of getting to know a partner and have become new conventional milestones in the process of constructing a long-term and perhaps life-long partnership.
Some cohabitees will go on to get married, and might indeed have intended to get married before having children. Perhaps the economic downturn will have put marriage plans on hold, especially with some experts claiming that the average cost of a wedding tops £20,000. A study by Jamieson and colleagues of married and cohabiting couples in their twenties living in Fife showed that many were in stable committed relationships but were not very concerned about their marital status. A very small minority were in the category that would have had ‘shotgun’ weddings in the past – their unplanned pregnancy had lead to them cohabiting and seeking to cement their relationship.
As there is no way to officially record co-habitation, it is difficult to research. We can record divorce rates but there is no official recording of cohabitation breakdown rates so there are no figures to compare. The British Household Panel survey asks people about their relationship status and follows them over time, and it is only through this kind of longitudinal data that we can unpick the facts. This type of data has been used to argue that cohabiting relationships are more fragile than married relationships. However, studies by Kamp Dush and Wu comparing relationship breakdown of cohabitees who marry before and after having children has also found no difference. Therefore, there is a continuing debate about whether or not cohabitees with children are more likely to separate than married couples, especially when we take other factors into account.
Looking across the decades since the 1970s, we know that the more well-off have always been more likely to marry and remain married. Less wealthy people may not have the resources for the wedding they would like, and less financial security contributes to relationship breakdown. When marriage was still the most common form of couple relationship, research has shown that the poorer were more likely to experience relationship breakdown and those who were poor and married very young were the most at risk.
If we translate these trends into today’s figures, there is very little change in what matters about the relationship status of Scotland’s new parents. Most babies will be born into as stable families as before, but just over half without the official stamp of marriage. Most new parents will be setting out to nurture and sustain their family unit. Whether or not they are married, a small proportion will separate as the children grow up. The Growing Up in Scotland study, a longitudinal study annually following infants, shows that in the course of their early years, between the first and second years of the study, more children gained a father in their household because of the partnering of a lone mother than experience the loss of a father. In the majority of new partnerships, it is the biological parents who have started to live together. The new figures reflect that marriage is a declining trend, but not that relationships no longer matter.
For further information about the Growing up in Scotland study, see the Growing Up In Scotland website.
For further information about other research cited in this blog please see the reference page.
New Registrar General figures released last week show that for the first time in Scotland more than half of babies were born to unmarried parents. Interestingly we are not the first part of the UK to reflect this change, with Wales reaching this point in 1993.
The news has been greeted with the predictable ringing of hands about the state of the family and concern about the plight of children born into these kinds of families. But what does this figure tell us about the root of these concerns - whether or not children are being born into stable, loving, long-term relationships?
Most of the 50.1 % of children in the headlines will be born into couple households where the couple are living together unmarried, rather than being born to solo mothers. The Registrar General’s report shows that the proportion of births registered only in the mothers name is just 6% and has remained fairly constant for over twenty years. Since 1995 a record has been kept of whether an unmarried mother and father registering a birth live at the same address. According to Scottish Government figures, as the proportion of married parents has shrunk so there has been an equivalent increase in births to parents living together. In 2007, 32% of births are jointly registered to parents living at the same address, 11% to parents at separate addresses and 6% by mothers alone.
It is now normal for most couples in Scotland to live together before they get married, and attitude surveys show that only a very small proportion of the population make any moral distinction between living together as couple and marriage. It may be that living together is seen as a sensible ‘testing’ of a relationship before making a fuller commitment. Or developing a sexual relationship and living together may have become ways of getting to know a partner and have become new conventional milestones in the process of constructing a long-term and perhaps life-long partnership.
Some cohabitees will go on to get married, and might indeed have intended to get married before having children. Perhaps the economic downturn will have put marriage plans on hold, especially with some experts claiming that the average cost of a wedding tops £20,000. A study by Jamieson and colleagues of married and cohabiting couples in their twenties living in Fife showed that many were in stable committed relationships but were not very concerned about their marital status. A very small minority were in the category that would have had ‘shotgun’ weddings in the past – their unplanned pregnancy had lead to them cohabiting and seeking to cement their relationship.
As there is no way to officially record co-habitation, it is difficult to research. We can record divorce rates but there is no official recording of cohabitation breakdown rates so there are no figures to compare. The British Household Panel survey asks people about their relationship status and follows them over time, and it is only through this kind of longitudinal data that we can unpick the facts. This type of data has been used to argue that cohabiting relationships are more fragile than married relationships. However, studies by Kamp Dush and Wu comparing relationship breakdown of cohabitees who marry before and after having children has also found no difference. Therefore, there is a continuing debate about whether or not cohabitees with children are more likely to separate than married couples, especially when we take other factors into account.
Looking across the decades since the 1970s, we know that the more well-off have always been more likely to marry and remain married. Less wealthy people may not have the resources for the wedding they would like, and less financial security contributes to relationship breakdown. When marriage was still the most common form of couple relationship, research has shown that the poorer were more likely to experience relationship breakdown and those who were poor and married very young were the most at risk.
If we translate these trends into today’s figures, there is very little change in what matters about the relationship status of Scotland’s new parents. Most babies will be born into as stable families as before, but just over half without the official stamp of marriage. Most new parents will be setting out to nurture and sustain their family unit. Whether or not they are married, a small proportion will separate as the children grow up. The Growing Up in Scotland study, a longitudinal study annually following infants, shows that in the course of their early years, between the first and second years of the study, more children gained a father in their household because of the partnering of a lone mother than experience the loss of a father. In the majority of new partnerships, it is the biological parents who have started to live together. The new figures reflect that marriage is a declining trend, but not that relationships no longer matter.
For further information about the Growing up in Scotland study, see the Growing Up In Scotland website.
For further information about other research cited in this blog please see the reference page.
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