Are foreign prenups recognised in England?
When it comes to marriage, love and commitment are undoubtedly the cornerstones. However, practical considerations also play a significant role, especially in an increasingly globalised world where individuals from different countries come together.
Prenuptial agreements, commonly known as prenups, have gained prominence as valuable legal instruments that address financial and property matters in the event of a marriage ending in divorce. In this article, we’ll delve into the realm of prenuptial agreements in England, exploring their legality, purpose, and the treatment of international prenups under English law.
Are prenups considered legal in England?
Prenuptial agreements are not always legally binding in England and Wales. They are taken into consideration by a judge should a couple file for divorce in the English family court, but the judge still has discretion as to whether a couple should be held to the agreement. A prenuptial agreement is most likely to be upheld if it is fair and meets certain criteria. The court will take into consideration the following factors:
- Was the prenuptial agreement written by a qualified family law expert?
- Did both parties seek independent legal advice?
- Was there full and frank disclosure?
- Did both parties understand the agreement and willingly enter into it?
There is no specific time frame for signing these agreements, but in the case of K v K [2003], the court indicated a minimum number of days for the agreement to be signed before the wedding. The court held that the agreement should be signed plenty of time before the wedding. This way, it could be satisfied that both parties had properly considered the contents and not been forced into signing it.
The leading case providing guidance on how much weight is given to a prenuptial agreement is the Supreme Court decision in Radmacher v Granatino [2010]. Following this case, the English 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 their agreement.
How do other countries deal with prenuptial agreements?
A different approach is taken in the USA, South Africa, Canada, Australia, and New Zealand, where prenuptial agreements are usually enforceable contracts. But an agreement enforceable in those countries may still not be upheld in England.
Can my foreign prenuptial agreement be enforced in the English courts?
In England, the courts will only apply English Law. English Law looks at the circumstances of the case and whether the terms of the foreign agreement are fair from an English legal perspective. I will now look at how the English court considered prenuptial agreements from recent cases.
In the recent case of S v H [2020] a prenuptial agreement was entered into overseas and signed by a notary abroad. After the parties separated, the English courts found that the agreement was not binding because there was no formal process of disclosure, neither party took legal advice, and it was entered into 5 days before the wedding. The judge ordered the wife to pay the husband a lump sum that was not in accordance with the agreement.
Is an American prenup recognised in England?
A prenuptial agreement was drafted and signed in America in the case of Collardeau- Fuchs v Fuchs [2022]. The couple later divorced in England and the English courts found that the wife was entitled to what was set out in the American prenup plus an additional sum. The courts did not think the agreement satisfied the wife’s needs, therefore making an award different from the American agreement.
Is a French prenup or “separation de biens” marriage contract recognised in England?
In the case of Z v Z [2011] a couple entered in to a “separation de biens” marriage contract which attempted to prevent the sharing of property on divorce. The English court found this French agreement to be unfair as it excluded sharing the assets accrued during the marriage. The judge made a needs-based order, allowing the wife to receive 40% of the assets.
Similarly, in the case of CMX v EJX [2022], the parties entered into a French agreement. The judge did not consider the lack of independent legal advice or full disclosure to be fatal. However, the judge made a needs-based award of 38.9% of total matrimonial assets to the wife.
Careful consideration should also be given to South African antenuptial or prenuptial agreements. Agreements that set out that a marriage will be outside community of property may not be enforced in England should the couple relocate to England or fall under English jurisdiction at the time of divorce.
Summary
In summary, the above cases highlight that foreign prenuptial agreements will be considered by the English courts, but may not be strictly applied. An English judge will first need to be satisfied that the agreement is fair to all parties involved.
If you may fall under English jurisdiction through habitual residence or domicile, it is sensible to review any foreign prenuptial agreement. A postnuptial agreement drafted under English law is a sensible way to review a foreign prenuptial agreement and to maximise enforceability of such agreements in England.
If you have any connection to England and Wales and would like to discuss a prenuptial agreement or enforce one, then please contact alexandra@expatriatelaw.com.
