Richard Frimston
Solicitor and Notary Public of England & Wales
Partner and Head of Private Client, Russell-Cooke LLP
Member EU Experts’ Group PRM III/IV and PRM III
Chairman STEP EU Committee
Member Law Society of England & Wales International Issues Committee and its
representative to CAE of UINL
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United Kingdom and the Common Law
The substantive internal law and the private international law in thee
United Kingdom do differ between the three separate legal jurisdictions of
Scotland, England & Wales and Northern Ireland. Generally, the effects of
marriage and registered partnerships on property rights are recognised for
succession purposes. On divorce or dissolution, however, since the courts
have overriding powers to order transfers of property, the precise
ownership of property is often not relevant and not considered.
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Scotland
By virtue of s.39 Family Law (Scotland) Act 2006 Scotland private
international law recognises Matrimonial Property Regimes in accordance
with the law of a joint domicile for movables and in accordance with the lex
situs for immovables. Otherwise, marriage has no effect on property rights
in Scotland.
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England & Wales
In olden times, a husband and wife were one legal person with assets held
in the name of husband. A married woman did not have the necessary
legal capacity to hold property. On marriage all property vested in the
husband, but a distinction was made between absolute rights over
personalty – chattels real, choses in possession and chattels personal and rights over real property which generally limited the vesting in the
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husband to income. Rights over choses in action had to be claimed and
possession taken. Wives were entitled to hold personal jewellery and other
items – their paraphernalia.
The courts of equity however gave protection for property held for the
wife’s separate use and thus marriage settlements created before
marriage were used to protect assets for wives. The Married Women’s
Property Act 1882 gave wives the right to the legal ownership of separate
property. The Law Reform (Married Women and Tortfeasors) Act 1935
removed most outstanding differences between married and unmarried
women in relation to capacity, property and liabilities although different
restraints upon anticipation were not removed until the Married Women
(Retraint upon Anticipation) Act 1949.
The Domicile Act 1973 changed a married woman’s domicile from that of
dependency to an independent one, so that spouses since 1973 may have
different domiciles.
England & Wales will recognise a matrimonial property regime (for
succession purposes, even if not for divorce purposes) if valid in
accordance with the law of the spouses’ matrimonial domicile. The case
law supported the contention that there can only be one regime in relation
to the spouses’ entire matrimonial property, both movable and immovable
although Welch v Tennent [1891] AC 639 and the De Nicols cases do
conflict somewhat and are now more than 100 years old. The De Nicols
cases are also confusing since there are two strands - De Nicols v Curlier
[1900] AC 21 which went up to the House of Lords and Re De Nicols
[1900] Ch 410 which did not.
There is also some uncertainty as to whether England would recognise
separate regimes in relation to movable and immovable, which would be
valid under the Hague Convention. It is also uncertain under English law
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as to whether a subsequent change in the spouses’ matrimonial domicile,
will have an affect on their matrimonial property regime; whether it is
immutable or mutable, and whether it might be mutable only in relation to
movables.
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Divorce and Dissolution
One of the difficulties in discussing matrimonial property regimes in
England & Wales, is that since they have little relevance to internal
succession law issues, it is automatically assumed by many lawyers that
they relate solely to divorce and are identical to pre nuptial contracts.
In the Family courts of England & Wales, it is the case that the internal law
of England & Wales is always applied if the courts of England & Wales
have jurisdiction. The race for jurisdiction can therefore as a result be
fiercer.
The Supreme Court’s judgment last year in the case of Radmacher v
Granatino UKSC [2010] 42 has not clarified the private international law
position of England & Wales in relation to succession. The Supreme Court
was clear in stating that on divorce, orders under s.25 Matrimonial Causes
Act 1973 relate to maintenance obligations and that the position in
England & Wales on divorce is not a matrimonial regime. The Supreme
Court was accordingly not bound by the German Matrimonial Contract, but
took its existence into account and in the circumstances of the case did
not order a transfer of property from the richer wife to the poorer husband.
The family courts of England & Wales rarely have to consider the
differences between a matrimonial property right or a maintenance
obligation. The financial order of the court will encompass obligations
which may involve both a transfer of matrimonial property and a
maintenance obligation.
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Van den Boogaard v Laumen
The ECJ decision in Van den Boogaard v Laumen C-220/95 held that a
transfer of property was still a maintenance obligation order. “The English
court was under an obligation to consider whether it had to impose a clean
break between the spouses and to order payment of a lump sum instead
of periodical payments. The fact that the decision in the present case also
ordered ownership on certain property to be transferred between the
former spouses could not call in question the nature of that decision as an
order for the provision of maintenance. The aim was still to make
provision, by means of a capital sum, for the maintenance of one of the
former spouses. Consequently, a decision in divorce proceedings ordering
payment of a lump sum and transfer of ownership in certain property by
one party to his or her former spouse must be regarded as relating to
maintenance and therefore as falling within the scope of the Brussels
Convention if its purpose was to ensure the former spouse's maintenance.
The fact that the English court did not consider itself bound by the
marriage contract was not relevant for the purposes of defining the nature
of the decision.”
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Registered Partnerships
The Civil Partnership Act 2004 applies throughout the United Kingdom to
Scotland, England & Wales and to Northern Ireland. With only the same
limited residence requirements as for marriage, most quasi and many
semi marriages whether registered as marriages or as registered
partnerships are automatically recognised as civil partnerships defined
under the 2004 Act as overseas relationships. All Civil Partnerships are
however only available to same sex couples.
Mixed sex registered partnerships registered in other states are therefore
currently not recognised as civil partnerships. Some argue that any such
mixed sex relationships should be automatically recognised in the United
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Kingdom as a marriage, so as to avoid any discrimination on the grounds
of a person’s sex
The United Kingdom should therefore have no additional difficulties in
relation to Rome IVB proposal over and above its problems with Rome
IVA save in relation to mixed sex registered partnerships.
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United Kingdom and the Rome IV proposals
The United Kingdom would have no difficulty whatsoever with the
proposals so far as they affect property rights on death, save that the UK
currently does not recognise a registered partnership of a mixed sex
couple. For many practitioners, the proposals would give a clarity on
death that does not currently exist.
The United Kingdom does however have extreme difficulty with the
proposals in so far as they affect the discretion of the Family courts to
apply the local internal law in the United Kingdom on divorce or
dissolution.
If it was clear as indicated in the Van den Boogaard v Laumen case that
the powers of the court under s25 of the Matrimonial Causes Act 1973
remained unaffected, but that pre existing property rights such as in the
case of Radmacher v Granatino should be taken into account but could
still be overturned by the English courts, then it is possible that the United
Kingdom Government might then be able to opt in.
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