International Prenuptial Agreements

Different countries have different laws related to prenuptial agreements, which can cause problems if you move to another country or to the UK from abroad. Whether a prenuptial agreement remains valid in your new country of residency is determined by the circumstances of the case and the terms of agreement.

At JMW, our team has experience in handling international prenuptial agreements and ensuring those made in the UK or drafted with our help remain valid in other countries.

To speak to a solicitor about international prenuptial agreements, get in touch with our team today by calling 0800 652 5577 or fill in our online enquiry form and we will get back to you.

What is a Prenuptial Agreement?

A prenuptial agreement is an agreement (usually in writing) that aims to help couples decide in advance what financial settlement will be put in place if their marriage breaks down.

Prenuptial agreements are entered into for many different reasons, including:

  • the couple wants as much certainty as possible in the event they separate
  • one or both spouses wants to (ideally) retain certain assets in case of divorce
  • older family members might insist on a pre- or post-nuptial agreement before making a substantial gift or leaving property in their will to protect it in case of divorce
  • a kind of trust exercise - someone might want to show that they are not marrying the other person for their money

The Law in England and Wales

The law is quite subtle and can be confusing. The best summary of the law comes from a 2010 Supreme Court case called Radmacher v Granatino. In this quotation, the phrase ‘nuptial agreement’ includes prenuptial agreements (signed before a wedding), post-nuptial agreements (a similar document signed by a couple who are already married) and agreements between same-sex couples before or after a civil partnership ceremony.

“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement.”

In other words, a couple will not always be held to the terms of their prenuptial agreement if one of them changes their mind at the point of separation or divorce. However, the courts will hold the couple to the terms of the agreement if it has been put together fairly and properly.

To stand the best chance of being upheld, a prenuptial agreement should:

  • ensure both parties’ basic needs are met
  • be signed after the couple have had:
    • full disclosure of each other’s financial position
    • independent legal advice
  • be completed well in advance of the wedding or civil partnership ceremony
  • be entered into without unfair pressure from either side
  • have some kind of review built in to take account of changing circumstances over the years

International Couples

The law on prenuptial agreements differs from country to country and, throughout the world, there are many different traditions surrounding marriage and legal agreements between couples. Here are just some of the different types of arrangement in operation around the world:

  • Prenuptial agreements are not recognised at all
  • Prenuptial agreements have been recognised for hundreds of years and are not uncommon
  • Couples are free to enter into prenuptial agreements but the courts can step in to prevent substantial unfairness or hardship
  • As in England and Wales, prenuptial agreements are very detailed and tailored to the individual wishes of the small number of couples that enter into them
  • Rather than entering into a detailed agreement, in some places, couples can simply choose whether their assets will be subject to a community of property regime or a separation of property regime
  • Each time one member of a married couple purchases property in some countries, they can elect whether it will be treated as separate property or part of the matrimonial ‘pot’

Just because an agreement is valid is one country does not mean it will be valid in another. Equally, the fact that an agreement has been made in a country with different laws does not necessarily mean it will be ignored by the courts in England and Wales. It all depends on the circumstances of the case and the terms of the agreement.

The situation can get complicated when a couple has a prenuptial or other marital agreement from one country and then moves to another with different laws and traditions. Lots of cases have gone through the courts in England and Wales where a divorcing couple with an overseas prenuptial agreement have disagreed over whether or not it should be followed. We have learnt some guiding principles from cases like this:

  • When couples have had full financial disclosure and individual legal advice on the terms of the agreement, it is more likely to be upheld
  • Even if an agreement is not upheld in full, its existence could influence the court to award a lower financial settlement than they would if there had been no agreement
  • Sometimes prenuptial agreements can influence not only the financial settlement but also which country’s courts will deal with the divorce proceedings
  • Certain terms in certain agreements can restrict the court’s ability to deal with all aspects of a financial settlement

All financial settlements on divorce have to be approved by the court in this country, even where the parties are fully agreed on the terms and/or there is a prenuptial agreement. In practice, cases where there is complete agreement are almost always dealt with by a judge as a paperwork exercise without the need for anyone to appear in court.

Top Tips for International Prenuptial Agreements…and Making Them Stick

  • At the point of signing the agreement, make sure you take legal advice and ask your lawyer what (if anything) can be done to make clear that you intend to be held to the agreement even if you relocate abroad
  • If you are planning to relocate to this country after marrying, ask your lawyer to consider whether they should take advice from a UK solicitor or barrister before finalising the agreement
  • If the agreement was completed before you considered relocating here, consult a solicitor in this country about how the agreement may be treated here
  • Consider entering into an English post-nuptial agreement to confirm the terms of any agreement entered into abroad (so far as this is possible under English law)
  • If you are already separating and have an overseas prenuptial agreement, make sure you take legal advice as soon as possible to find out whether you should be trying to argue for the divorce to be dealt with in another country

Why Choose JMW?

The family law department has a strong track record of helping couples negotiate, draft and refine prenuptial agreements. We have advised individuals in a wide variety of different situations and can call on years of experience to help guide you towards the best possible result.

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