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Marital Agreements and Private Autonomy in Comparative Perspective

Editor(s): Jens M Scherpe
Media of Marital Agreements and Private Autonomy in Comparative Perspective
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Published: 24-02-2012
Format: Hardback
Edition: 1st
Extent: 532
ISBN: 9781849460125
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP: £110.00
Online price : £99.00
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Loren Epson

About Marital Agreements and Private Autonomy in Comparative Perspective

This book deals with a subject that has recently been the focus of debate and law reform in many jurisdictions: how much scope should spouses have to conclude agreements concerning their financial affairs - and under what circumstances should such agreements be binding and enforceable? These marital agreements include pre-nuptial, post-nuptial and separation agreements.

The book is the result of a British Academy-funded research project which investigated and compared the relevant law of England and Wales, Australia, Austria, Belgium, France, Germany, Ireland, the Netherlands, New Zealand, Scotland, Singapore, Spain, Sweden and the jurisdictions of the United States. In addition to chapters on these jurisdictions, the book includes a chapter on the 'English practitioner's view'. It also provides a comparative analysis of the different matrimonial property regimes and the rules on marital agreements that explores underlying themes and principlesand makes recommendations for regulating marital agreements.

A key theme is the function and effect of marital agreements in the different jurisdictions. Thus, each chapter first explains the underlying 'default' rules for ancillary relief/matrimonial property and maintenance. It then analyses the current rules for marital agreements, and gives a brief account of the private international law rules.

The book provides a comprehensive source of reference on ancillary relief/matrimonial property and maintenance and the rules on pre-nuptial, post-nuptial and separation agreements in 14 jurisdictions. It offers guidance for academics and practitioners dealing with international matters, and a basis for discussions on law reform.

'I applaud the vision and perseverance of Jens Scherpe in having conceived this book and, with so much distinguished help, in now bringing it to birth. I will be using it for many years and I warmly invite my fellow family lawyers across the world to do likewise.'
Foreword by The Rt Hon Lord Wilson of Culworth, Justice of the Supreme Court of the United Kingdom

Table Of Contents

Introduction to the Project
Jens M Scherpe
National Reports on Marital Agreements and Private Autonomy
Owen Jessep
Susanne Ferrari
France and Belgium
Walter Pintens
England and Wales
Joanna Miles
An English Practitioner's View on Pre-Nuptial, Post-Nuptial and Separation Agreements
Mark Harper and Brett Frankle
The Law Commission's Consultation on Marital Property Agreements
Elizabeth Cooke
Anatol Dutta
Louise Crowley
The Netherlands
Katharina Boele-Woelki and Bente Braat
New Zealand
Margaret Briggs
Kenneth McK Norrie
Wai Kum Leong
Josep Ferrer-Riba
Maarit Jänterä-Jareborg
United States
Ira Mark Ellman
Marital Agreements and Private Autonomy in Comparative Perspective
Jens M Scherpe


“... an excellent reference resource for international comparisons on the law on marital agreements” –  Debbie Ong, Singapore Journal of Legal Studies

“...a book of the highest quality
I hope that judges, lawyers and members of the public read this book widely. It's thoroughness and clarity as to what the choices are means that it will be the leading book to refer to whenever the scope of marital agreements are debated in the courts.
” –  Mark Henaghan, Otago Law Review

“This book contains everything that you might want to know about marital agreements, and more. It is now the leading comparative work on this issue. [It] is an outstanding work of comparative family law [and] a magnificent achievement. It is a model of how this kind of exercise should be done and of the benefits of undertaking this kind of analysis.” –  Jonathan Herring, Law Quarterly Review

“Dr. Scherpe states that its aim is to "inform and stimulate academic discussion on the topic". It actually accomplishes much more than that and should be of interest well beyond the halls of academe...Practitioners with high-rolling clients with international lifestyles would be well advised to become familiar with some of the pitfalls that could ensnare their clients.” –  Robert E. Rains, Family Law Quarterly

“...a comprehensive source of reference on marital agreements and the default system regulating the financial relations between the spouses in no fewer than 14 common law and civil law jurisdictions. Both the editor and the contributors understand the art of providing a detailed insight into this issue, ever mindful of the relevant socio-economic and legal context but without loss of clarity. The result is a book that achieves the highest scholarly standards but reads like a novel: a rare and valuable combination.
Excelling in both quality and clarity [the book] aims to provide guidance for academics and practitioners alike and will soon prove to be the reference work par excellence on this topic.
” –  Elise Goossens, European Review of Private Law

“The editor is to be congratulated on avoiding the misunderstanding of terms and general description which plague so many potentially useful international collaborative enterprises. The use in this project of a common questionnaire on key issues for all participants, and the time spent in face to face discussion, has ensured a depth of common understanding, enabling contributors to reflect on the character of their own jurisdiction and to go on to make meaningful comparisons with others.” –  Mavis Maclean, The Edinburgh Law Review

“Given [the] wide-ranging analysis, there seems little doubt that this well-researched and edited book will be essential reading for all scholars, lawyers and judges who may have to grapple with the issue of the legal status of marital agreements in the coming months and years.” –  Keith Hotten, Hong Kong Law Journal

“The comparison that the book allows, with its careful structure, is very useful...The book enables practitioners to acquire insights on how to prepare pre-nuptial agreements with international elements (ie to do something more than copy a precedent!).” –  William Healing, Family Law

“Though there have been other publications which compare the position of marital property agreements in different jurisdictions, the contribution made by this book is unique. It does not simply present a catalogue of the legal context of agreements in different jurisdictions. Rather, the strength of the book is its comparative analysis.” –  Sharon Thompson, Child and Family Law Quarterly

“This work is the result of a huge project under taken by Dr Scherpe and the other writers. It is well structured and readable. Not all practising lawyers will read about every jurisdiction, but the material and the way it is set out are thought provoking. The book contains vital information for family lawyers preparing pre-nuptial agreements for couples, especially in an international context.” –  William Healing, International Family Law

“The readership of this collection will be diverse. Undoubtedly, it will assist academics, particularly those in England and Wales who find themselves in a jurisdiction on the cusp of statutory reform. Similarly, it will also aid practitioners dealing with cases that now habitually involve international elements, particularly as one of the chapters gives a useful English practitioner's view on marital agreements. These individuals will not only benefit from the insightful perspectives offered by the contributors to this collection but will also see how Scherpe, as a leading academic in this field, has skilfully brought together their findings and, as a result, evidenced the true values of comparative family law in this area.” –  Andrew Hayward, Australian Journal of Family Law

“Given the breadth of the jurisdictions surveyed in this book, and given the defensible methodology in which the jurisdictions were surveyed, this book is a recommended read for all involved in reforming the law in this area.” –  Siyuan Chen, Asian Journal of Comparative Law

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