2 Is there a statutory matrimonial property regime and if so, what does it provide?

2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?

England/Wales:

England and Wales do not have a matrimonial property regime as such, there is no community of property and thus marriage in principle does not have a proprietary effect. However, upon divorce the courts are given a very wide discretion to make a wide range of orders (referred to as 'ancillary relief') (see answer to 5.1.).

Scotland

Scotland has a modified separate property system. The general rule is that marriage does not affect the ownership of property (section 24 Family Law (Scotland) Act 1985). However, this is modified in important ways:

  • A spouse has statutory occupancy rights in the matrimonial home, even if it is owned solely by the other spouse.
  • There is a principle of fair sharing (which normally means equal sharing) of matrimonial property on divorce.
  • A surviving spouse has certain protected rights on the death of the other and, on testacy, will often take the whole estate.

2.2. Are there legal assumptions concerning the attribution of property?

England/Wales

Marriage as such does not have a proprietary effect. See also 5.1. below.

Scotland

There is a presumption that household goods acquired in prospect of the marriage or during the marriage are owned in equal shares, even if they were bought by one spouse (section 25 Family Law (Scotland) Act 1985).

2.3. Should the spouses establish an inventory of assets? If so, when and how?

England/Wales

There is no legal duty to do so. But since the source of the assets at the time of divorce can have an impact on the orders, it is to be recommended that the spouses do establish such an inventory (and update it when necessary). See also 3.1. and 3.2. below.

Scotland

There is no provision that makes it obligatory to establish an inventory of assets.

2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?

England/Wales

Section 37 of the Law of Property Act 1925 states that 'husband and wife shall, for all purposes of acquisition of any interest in property (…) be treated as two persons', so the general law of property applies. The Law of England and Wales does not even give a spouse the right to be consulted or to veto transactions regarding the family home owned by the other spouse (see National Provincial Bank Ltd. v. Ainsworth [1965] AC 1175 and Barclays Bank v. O'Brien [1994] 1 AC 1980).

But it is important to note that the Law of England and Wales distinguishes between legal ownership (the nominal holder of the title) and equitable/beneficial ownership. Hence trust law allows for the acquisition of a beneficial interest even if the other spouse is the legal owner. Generally, it is the legal owner who has the right to administrate the assets, but if the spouse (or another person) has a beneficial interest in the asset that might provide certain limitations.

Scotland

The starting point is that each spouse administers his/her own property but, under the normal rules on agency, either can authorise the other to do this. Each spouse is entitled to dispose of his/her own property. However, the effect of the statutory occupancy rights in the matrimonial home is that the spouse who owns the home cannot dispose of it without the consent of the other. Without such consent the occupancy rights are opposable against the purchaser (Matrimonial Homes (Family Protection) (Scotland) Act 1981).

2.5. Are any legal transactions made by one spouse also binding on the other?

England/Wales

No, the general law of contract etc. applies.

Scotland

There are no special rules for spouses. The ordinary law on agency applies.

2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?

England/Wales

In principle each spouse is liable for his/her debt unless special circumstances apply (but see 2.4. above). Only the property of the spouse who has incurred the debt can be used to satisfy a creditor's claim.

Scotland

Each spouse is liable for his/her own debts. The creditors of each spouse can use only that spouse's property to satisfy their claims. However, there are special protections for the matrimonial home in the bankruptcy legislation (see sections 40 and 41 Bankruptcy (Scotland) Act 1985).