- This month’s update gives a nod to the present but, in the main, looks back rather than forwards. Occasionally, when researching old decided cases to bolster arguments in relation to a case yet to be fought, it is striking just how much the law and social attitudes change.
- It is generally thought that changes in the law lag behind changes in society. No doubt examples could be found showing the opposite. But this is not the place to enter into that debate. This note simply touches on a particular instance as an illustration of changes in social attitudes and changes in the law – but without trying to identify which of them is the proverbial chicken and which the egg.
- In 1891 Mr Murray in his leading Scots text on “Married Persons” noted:
“No deed known in practice plays a more important part in the affairs of modern life than an ante-nuptial contract of marriage.”
- The very phrase “ante-nuptial contract of marriage” conjures up images of Bleak House. Indeed Mr Murray’s “Married Persons” was published not long after Bleak House. (One suspects that Bleak House sold better.)
- Mr Murray makes it clear however that in the old days of Mitchells Roberton our predecessors must have spent many an hour beavering away at drawing up “ante-nuptial marriage contracts trusts” – which, for short, will be referred to below as “marriage settlements”.
What were marriage settlements for?
- In the old days getting married was no joke. At least for a woman. In those days getting married meant that much of her property became automatically the property of her husband, and even such property as did not pass to him came under his administrative control.
- Many women were not enamoured of that idea even if much enamoured of their prospective husband. More significantly perhaps in those days many fathers of young brides were not enthusiastic about the prospect of family property migrating to a prospective son-in-law.
- The answer then was to tie it up in a marriage settlement. This was usually done before the marriage actually took place. There were various advantages in doing that as far as protecting the property from creditors. And, perhaps more significantly, there were advantages in protecting the property within the settlement so that a dutiful wife could not be persuaded by a greedy husband to pass the benefit of the settlement on to him.
What was the attitude to marriage settlements?
- A leading case in 1875 surveyed the concept of the marriage settlement. The detail is not rehearsed here. But an extract from the opinion of Lord Deas, one of the (seven) judges in the case, gives a flavour of the general approach:
“the principle of protection to a wife for her marriage contract provisions is not unknown to our law…it appears to me that it is founded in nature – that the admirable subjugation of the will of the one sex to the pleasure of the other for the mutual benefit of both calls for it in return on the ground of humanity…it can only be a question of time its being recognised…in the law and practice of every civilised country.”
Where are we now on marriage settlements?
- The heyday of the traditional marriage settlement described above is long gone. They are now obsolete. Changes in the law are a partial explanation:
the abolition of a husband’s rights in relation to his wife’s property (1881 and 1920);
the abolition of the scope for intending spouses to use a marriage settlement to discharge prospectively the legal rights of any children of the marriage (1964);
the abolition of a woman’s right to create a special form of life interest of her own property under a marriage settlement protecting it from her creditors (1984); and
the abolition of the marriage itself counting as “onerous consideration” so that a transfer to a marriage settlement by the parties was not a “gratuitous alienation” which might be challenged by creditors (1984).
- But, a leading commentator suggests that the obsolescence of the traditional marriage settlement is also to do with a change in attitudes:
“It has becomes less natural to think of marriage as an occasion for a visit to a solicitor’s office…a [couple] will still provide for their dependants but they will do so by means of titles in joint names, occupational pension schemes, equalisation of savings, insurance policies and wills.”
A nod to marriage contracts – as opposed to marriage settlements
- The terminology here can be slightly confusing. We have been talking above about marriage settlements: that is to say where property is held in trust. These are different from marriage contracts where there is an agreement – but no trust. This form of deed is still very much alive and kicking. The current legislation provides (emphasis added):
“Where the parties to a marriage or the partners in a civil partnership have entered into an agreement as to financial provision to be made on divorce or on dissolution of the civil partnership, the court may make an order setting aside or varying…the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into.”
- So, whilst marriage settlements may be obsolete, there is no barrier to the use of ante-nuptial marriage or civil partnership contracts so as to minimise the possibility of financial and property disputes on divorce or dissolution of a civil partnership.
In relation to such contracts it was argued in one case that an ante-nuptial contract i.e. a contract made before marriage was not covered by the statutory provision quoted above. In essence the argument was that the provision refers to “the parties to a marriage…”; if an agreement is made in an ante-nuptial agreement before the marriage then, at that time, it is not an agreement between the “parties to a marriage” – because they are not yet married; and, accordingly, such agreements fall outside the precise terms of the section. But the court rejected that argument.
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