The increasing importance of nuptial agreements in light of recent cases and statutory developments

It has been argued that in a free society, adults should be entitled to enter into private contracts without the interference of the state. However, under English law, husband and wife (or a couple in a same-sex marriage) are not free to enter into a legally binding contract in which they can set out their own terms when this right is afforded to other partnerships. The purpose of this paper is to consider whether such protection can or should be afforded to couples when entering into marriage. Divorce has financial consequences beyond those of the legal fees involved; the law holds that, despite the dissolution of the relationship, the parties retain obligations to support their former spouse. Such ‘needs’ are determined by the courts, with all property considered as appropriate for disposal. The increased number of remarriages and the increased age of first-time marriages have led to a growing desire for parties to protect the assets of each party as they enter into the state of matrimony. The right to autonomy in respect of their assets is therefore a point of contention. At a time when the legal system is trying to move to a more accessible, less court-driven system, to make divorce more accessible for individuals without the need for costly legal intervention, it has been suggested that a new approach is required to enable people to devise fair solutions for themselves. The Supreme Court judgment in Radmacher v Granatino [2010] UKSC 42 supported the freedom of parties to determine their own division of assets, stating that nuptial agreements should be given ‘decisive weight’ unless the agreement itself is unfair – and it is the courts who determine what is considered ‘fair’. One could, therefore, suggest that the apparent power of parties to determine the division of assets is not as it seems, as the final decision remains with the courts if the agreement is challenged by either party. The government has recognised the need for clarity in this area of law, initially through the commissioning of Law Commission Report 208, Matrimonial Property Agreements. Shortly afterwards, this was extended to include the financial provision element of divorce, and Report 343, Matrimonial Property, Needs and Agreements, was commissioned. Unusually, the government commissioned Report 343 before the research on Report 208 was complete, such was the importance placed upon this additional element. Their aim was to discern whether a simple statutory framework could be created to guide couples through the division of assets following the breakdown of their marriage. This paper discusses the impact of this judgment on the development of law in this area while critically analysing the future position following the recommendations of Law Commission Report 343, Matrimonial Property, Needs and Agreements (2014). As an area of law of current interest both in legal practice and academia, this paper looks at the law in practice both before and after Radmacher v Granatino and Law Commission Report 343, and considers whether further reform is needed before the law is readily accessible to the ‘common man’

Discursive arenas: deliberation and the constitution of identity in public participation at local level

This article is based on empirical research into public participation in two English cities. It discusses issues related to motivations to take part in public participation initiatives and the way in which individual and collective identities may be constructed through participation. Drawing on social movement theory it emphasises the importance both of networks and values in prompting participation and it illustrates this with examples drawn from participation initiatives based around identities: age, gender, ethnicity, and issues/interests such as health inequalities, community regeneration and social care service provision. The analysis suggests it is important to understand the histories and motivations of officials as well as citizens who take part, and questions the priority given to 'representation' in constituting the membership of participation forums

Public participation and collaborative governance

This paper draws on the findings of a study within the ESRC's Democracy and Participation Programme. It explores the processes of participation within deliberative forums – such as user panels, youth forums, area based committees – developed as a means of encouraging a more active, participating mode of citizenship and of improving welfare services by making them more responsive to users. Our findings open up a number of issues about constraints on the development of ‘collaborative governance’. To understand these constraints, we suggest, there is need to locate participation initiatives in the context of government policy, to explore ways in which such policy is interpreted and enacted by strategic actors in local organisations and to examine the perceptions of members of deliberative forums themselves. Our findings highlight the constraints on the ‘political opportunity structures’ created by the enhanced policy focus on public participation, and the consequent limits to ‘collaborative governance’. We discuss how governance theory and social movement theory can each contribute to the analysis, but also suggest productive points of engagement through which each of these bodies of theory might enrich the other