Family LawTO BE OR NOT TO BE. The existence or non-existence of matrimonial property regimes in England and Wales

June 14, 2023by Diana Carrillo0

If we ask an English family lawyer what the matrimonial property regime is in England and Wales, he will look at you with bemusement. Why is that? Simply because England and Wales are subject to common law jurisdiction and there is no Civil Code and no concept of matrimonial property law.

When two heterosexual people get married, or two homosexual people register as a civil partner (homosexual marriage is not permitted in England), all property in their name remains in their sole ownership. Any obligations you have in your name remain your sole account. Nothing changes as to the legal relationship with third parties outside the couple. If the husband is sued for debts, the wife does not run the risk of having her assets seized. This is, of course, to the extent that she can prove that the assets are her exclusive property. For example, if the wife has a house in her own name, whether acquired before or during the marriage, and to which the husband has not made any financial contribution either for its acquisition or for its improvement, if the husband has creditors the wife’s property remains hers and cannot be seized.

Interestingly, this was not always the approach, as it changed with the enactment of the Law of Property Act 1925, section 37 of which made it clear that: “The husband and wife, for the purpose of acquiring any interest in property, by virtue of a disposition already made or to be made after the commencement of this Act, shall be treated as two distinct persons”. Therefore, in English law there is no confusion of estates as a consequence of marriage. Hence there is a myth that in England we have “separation of property”, in relation to third parties, as the spouses retain their own property for the duration of the marriage.

The English Courts have no qualms about passing property from one spouse to another or from one party to another, and this includes even retirement pensions.

From the Spanish lawyer’s point of view, this is the most frequently asked question when the parties initiate divorce proceedings and the question of the application of English law arises. In this context, to think that there is a “separation of property” regime could not be further from the truth. In the event of divorce or separation of a registered partnership, both property and income are distributed, in England and Wales, having regard to Section 25 of the Matrimonial Proceedings Act 1973. Section 25 (2) of the Matrimonial Proceedings Act 1973 sets out a number of factors to be taken into account:

a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or may foreseeably acquire in the future, including, in the case of earning capacity, any increase in such capacity which it may, in the opinion of the Courts, be reasonable to expect one of the parties to the marriage to realise;

b) the financial needs, obligations and liabilities which each party to the marriage has or may have in the future;

c) the standard of living enjoyed by the family before the breakdown of the marriage;

d) the age of each party at the time of marriage and the duration of the marriage;

e) any physical or mental incapacity of either party to the marriage;

f) the contributions made by each of the parties or which they may make in the future for the welfare of the family, including any contributions for the maintenance of the household or the care of the family;

g) the conduct of each party, if such conduct would in the opinion of the Tribunal be unjust not to consider;

h) in the case of divorce or marriage annulment proceedings, the value to each party to the marriage of any benefits which, as a result of the dissolution of the marriage, the party would lose the ability to acquire”.

In addition, the English Courts will take account of case law, in particular the recent decision of the House of Lords in the Miller case (2006) UKHL 24 (http://www.bailii.org/ukJcasesfUKHL/2006/24.html). The case was decided by the House of Lords which is the highest Court in the UK. In particular, the parties must fill in the so-called “Form E”, and list all their assets and rights, whether acquired before the marriage, during the marriage, or planned to be acquired in the future (inheritance, bonds, etc.). All these assets and rights form the so-called “matrimonial bag”, the contents of which the Court has to distribute between the parties.

TO BE OR NOT TO BE. La existencia o no de regímenes matrimoniales en Inglaterra y Gales

The main factor to be taken into account in most cases is the needs of the family rather than the contributions of the spouses (which in most modest cases will be virtually irrelevant). There is no express reference to any matrimonial property regime or marriage contracts, although it is true that English case law is making progress on this issue, and there is already a recent case such as Z and Z (2011) in relation to a French “separation of property” regime agreed by the spouses, according to which in France the wife would have received 15% of the marital assets, whereas in England the Court awarded her 40%. Had they not signed the matrimonial property regime agreement, she would almost certainly have received 50% of the marital assets. In this case, the parties were very wealthy, and their assets far exceeded their needs. The 40% of the assets allowed the wife to have more than enough to live on while maintaining a high standard of living.

In a more modest matter it is very doubtful whether the fact that the couple had signed an agreement setting out their matrimonial property regime would have any effect on the final measures. The spouses’ pre-marital contributions are merely a factor to be taken into account. They are not protected and, where there are needs, particularly housing needs, the reality is that the English Courts do not care where the property comes from, with the exception of very short marriages. Take, for example, the case of Paul McCartney’s marriage to Heather Mills. Despite the fact that she contributed nothing to the marriage and he was the one who contributed all his assets to the marriage, Mrs Mills still received £25 million. This sum was to cover her needs.

The English Courts have no qualms about passing property from one spouse to another or from one party to another, and this includes even retirement pensions. An English Court has no problem passing title to property inherited by one party to the other if it considers it necessary. Who owns the property is irrelevant for practical purposes.

Therefore, if we compare both systems on this point, they could not be more different, since in Spain there is always a matrimonial property regime, either because the spouses stipulate it in marriage contracts or by legal provision according to their civil status, with the limitations established in the Civil Code.

The judge is obliged to respect the ownership of the assets and the nature of the assets, whether private or community property, without being able to dispose of them at his or her discretion. In fact, in Spain, not even the distribution of matrimonial property is contemplated in divorce proceedings, this being a different procedure from the liquidation of the marital assets. Thus, from the Spanish lawyer’s point of view, the “English matrimonial property regime” is more akin to a sui generis community property regime than to the separation of property regime in divorce proceedings. From the point of view of the English lawyer, there is no such matrimonial property regime!

Sarah Lucy Cooper

Barrister and Family Mediator

Diana Carrillo Martín

Family Lawyer

Diana Carrillo

More than 33 years of professional experience. Expert witness before the High Court of Justice of London. She is the author and co-author of various publications in Lawyerpress, Family Journal Issue or Resolution. Founding partner and vice president of AMAFI.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

https://cgderechointernacional.eu/wp-content/uploads/2023/06/logos-eu.jpg