Richard Frimston
Solicitor and Notary Public of EnglandWales
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
1United 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.
2Scotland
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.
3EnglandWales
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 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.
EnglandWales 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 andthe De Nicolscases 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 21which 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 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.
4Divorce and Dissolution
One of the difficulties in discussing matrimonial property regimes in EnglandWales, 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 EnglandWales, it is the case that the internal law of EnglandWales is always applied if the courts of EnglandWales 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 EnglandWales 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 EnglandWales 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.
5Van 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.”
6Registered Partnerships
The Civil Partnership Act 2004 applies throughout the United Kingdom to Scotland, EnglandWales 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 Kingdom as a marriage, so as to avoid any discrimination on the grounds of a person’s sex
The United Kingdomshould 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.
7United 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 Kingdomdoes 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 Kingdomon 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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