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MARITAL AGREEMENTS AND PRIVATE AUTONOMY IN COMPARATIVE PERSPECTIVE. Ed Jens M Scherpe Oxford: Hart Publishing (www.hartpub.co.uk), 2012. xiii + 504 pp. ISBN 9781849460125. £95.

Document Cited in Related
Vincent
AuthorMavis Maclean
Date01 January 2013
Published date01 January 2013
Pages97-98
DOI10.3366/elr.2013.0140

In 1989 Lenore Weitzman and Mavis Maclean called together a meeting of international scholars to discuss the financial arrangements which follow divorce at the Rockefeller Foundation in Bellagio, Italy. The resulting volume, L Weitzman and M Maclean (eds), Economic Consequences of Divorce (1990), argued for clear rules and predictable outcomes but also for the need to balance these with sufficient discretion for the court to be able to safeguard the interests of the more vulnerable parties, usually women and children. It was an exciting time, as empirical studies of the impact of divorce on women and children began to yield results in the US, in Japan, and throughout Europe, and the interaction between private decision making, legal rules, and state welfare began to be better understood. England and Wales were remarkable for their high level of judicial discretion.

Twenty years later, in 2009, Jens Scherpe called together his meeting of international scholars in Cambridge to discuss the legal position on marital agreements in jurisdictions with a variety of arrangements, amongst whom England and Wales still stand out as having a high level of judicial discretion. The underlying issues seem to have stood the test of time. But in this tightly focussed collection by key contributors to the field, well timed to support the supplementary Law Commission's Consultation on Matrimonial Property, Needs and Agreements (Law Commission Consultation Paper 208, September 2012), the basic dilemma of whether to seek fairness through discretion, or certainty through rules, is addressed with a new rigour at a level of theoretical sophistication to delight legal scholars, while at the same time offering the procedural detail which will be helpful to practitioners dealing with multinational cases. 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.

The individual chapters show clearly how the principles underlying systems for financial arrangements are almost universal: meeting post separation needs, especially for children and those caring for...

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