The pre-nuptial agreement : a local and comparative study

Abstract

The scope of this thesis is to undertake an in-depth analysis of the laws of the jurisdictions of France, England and Australia regarding pre-nuptial agreements in order to highlight the Civil-Common law divide and indicate where Malta, being a hybrid jurisdiction fits in. All this with the aim of establishing any recommendations required, in pursuance of bettering Maltese legislation on Pre-nuptial agreements. This will be achieved by primarily focusing on the substance of the pre-nuptial agreement in order to establish its purpose. The procedural requirements specific to the pre-nuptial agreement will also be addressed. The author will then proceed to deal with the limits established by law when it comes to drawing up the pre-nuptial agreement. Therefore the author will delve into which clauses are deemed to be unenforceable in the various jurisdictions. Furthermore, the issue of enforceability will be discussed, compared and contrasted. The reasons behind any differences or otherwise in the various jurisdictions will be analysed. The author will also compare and contrast pre-nuptial agreements with various analogous contracts to establish the role of the pre-nuptial agreement in Family law and whether the same rights at law are afforded to parties to a civil union or cohabitees.