ENGLAND AND WALES. A JURISDICTION WITHOUT A MATRIMONIAL PROPERTY REGIME*

In most jurisdictions, couples through getting married automatically become subject to a matrimonial property regime (unless they opt out by marital agreement). This regime in many jurisdictions regulates the property relations between the spouses (and third parties) during marriage, and in all jurisdictions when the marriage comes to an end. However, the jurisdiction of England and Wales does not have a statutory matrimonial property system. During marriage, normal property law rules apply. On divorce, the courts have considerable discretion under the Matrimonial Causes Act 1973: they can, among other things, order transfer of property, payment of a lump sum and periodical payments. The provisions of Part II of the Matrimonial Causes Act 1973 offer only limited guidance and are supplemented by case law. While this provides little in terms of legal certainty, it – at least in theory – ensures fairness in individual cases. However, the application of the discretion by the courts changed very significantly at the beginning of the century, arguably bringing England and Wales closer to having a matrimonial property regime.