International Pre & Post Nuptial Agreements
An international pre or post nuptial agreement is a very good way to protect and preserve wealth. This is also very relevant where you or your partner have different nationalities, where there are jurisdictional issues and/or assets in different countries. The aim of the nuptial agreement is to avoid future disputes in the event of a relationship breakdown.
What is an international pre or post nuptial agreement?
Where a couple live in different jurisdictions or may do so in the future, it is important to consider entering into a nuptial agreement. There are a number of benefits for nuptial agreements for domestic marriages, but those benefits can be multiplied when the couple are from different countries, have assets overseas and so on.
Because of the international family law element, it is important that the couple and their family law solicitors consider the laws of all the relevant jurisdictions involved.
The purpose of the international pre or post nuptial agreement is to attempt to protect wealth following a future divorce or separation, to provide for certainty of outcome, to avoid the court, to save legal costs and, importantly, with a view to the nuptial agreement being recognised and enforced in all of the relevant jurisdictions.
Should I have an international pre or post nuptial agreement in England and Wales?
If the case involves the jurisdiction of England & Wales then it is certainly worth considering seeking specialist family law advice from a solicitor about a nuptial agreement.
Is an international pre or post nuptial agreement binding in England & Wales?
A family court in England & Wales always retains a discretion to decide what is fair when dividing the matrimonial assets. A nuptial agreement will be taken into account as one of the factors in the case. Therefore, an international pre or post nuptial agreement in England & Wales is not automatically binding but certainly can carry some persuasive weight if dealt with properly.
What factors will weaken my international pre or post nuptial agreement?
Guidelines have developed so that an international pre or post nuptial agreement will carry little or no weight before an English family court if any of the following circumstances were found to apply:
- Where there is a child of the family born.
- Where the international pre or post nuptial agreement is unenforceable e.g., it attempts to lay an obligation on a third party who has not agreed in advance.
- Where one or both of the couple did not receive independent family law advice before entering into the international pre or post nuptial agreement.
- Where the family court considers that the enforcement of the agreement would cause significant injustice (to one or both of the couple or any child).
- Where one or both of the couple have failed to give full financial disclosure of assets and income before the agreement was made.
- Where the international pre or post nuptial agreement is signed very shortly before the wedding (presently within 21 days but further guidance recommends at least 28 days before the wedding).
- Where there is evidence that one of the couple was placed under undue pressure to sign the international pre or post nuptial agreement.
It is also very important to consider the level of financial provision to be provided for the financially weaker party within the international pre or post nuptial agreement.
If the level of financial provision proposed is very low or non-existent then the international pre or post nuptial agreement may carry little or no weight.
There is always the possibility that the international pre or post nuptial agreement may be departed from by a family court in the event of:
- Manifest injustice
- Failure to provide for a child
- Throwing one party on the State
To promote the enforceability of the international pre or post nuptial agreement, the financial disclosure should be as full as possible and with documents in support.
Should I have a ‘mirror’ international pre or post nuptial agreement in another jurisdiction?
Where there is an international dimension to the case then it is important that you seek specialist family law advice in all the relevant countries about the proposed nuptial agreement, whether or not this would be binding on you both in those countries and what steps need to be taken e.g. to prepare a ‘mirror’ type agreement.
What happens to my international pre or post nuptial agreement if I move overseas?
If you leave England & Wales then there is a risk that you may no longer meet the jurisdictional requirements to divorce in England in the event of a future breakdown in the relationship.
You should take advice from family lawyers in the other country or countries where you may be moving to, to provide you with advice about how a family court in another country would treat your English nuptial agreement. You can then make an informed decision about whether or not to leave England & Wales and/or to have a fresh nuptial agreement.
I have foreign international pre or post nuptial agreement, will this be recognised by the English court?
A nuptial agreement may not be binding on an English family court. An English court will also not be restricted by any jurisdictional clauses i.e., it will apply English law and not foreign law even though the nuptial agreement was completed in a different country.
An English family judge has a discretion when taking into account the existence of an international pre or post nuptial agreement. The judge’s role is to provide for a fair outcome when dividing the matrimonial assets. However, the existence of an international pre or post nuptial agreement may carry some evidential or persuasive weight before the English family court.
What happens to my international pre or post nuptial agreement if there is a future change in law?
Nuptial agreements are subject to future changes in law.
The Law Commission in England & Wales has recommended that nuptial agreements are given statutory effect, with a view to then becoming a ‘qualifying nuptial agreement’. This is not presently law but there is additional guidance. It is important therefore that your nuptial agreement is regularly reviewed to take into account any proposed or actual changes in law. A family law solicitor can help you with this.
How can we help you?
An international pre or post nuptial agreement essentially makes reference to what should happen financially in the event of a separation or a divorce. We can advise you in relation to the laws of England & Wales and can provide specialist international family law advice within this jurisdiction. James Maguire is a Fellow of the International Academy of Family Lawyers. We also work with independent international family lawyers around the world.