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International families and prenuptial agreements

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If you are planning to marry, then nowadays the likelihood is that either you, your fiancée or a family member of either of your families will think about raising the topic of a prenuptial agreement. You or they may not have the courage to bring the topic of a prenuptial agreement up in conversation but it will certainly cross your mind or be thought about by your fiancée or his or her family.

The top London immigration solicitors advise many international families on the individual and business immigration law needs as well as any family law issues. International families are used to sorting out prenuptial agreements because in many countries it is routine for engaged couples to sign a document designed to set out what will happen to their assets on divorce or death.

In many foreign countries, an engaged couple will be asked to sign up to a marital property regime. They normally have a choice of which marital property regime to elect. Some marital property regimes just ring fence pre-marriage owned assets and wealth whereas others also govern what will happen to post marriage acquired assets.

In England, there are no marital property regimes for a couple to consider and elect their preferred regime prior to their marriage. The nearest alternative is the preparation and signing of a prenuptial agreement.

Many international families assume that if an engaged couple elected a marital property regime to use prior to their marriage then if the couple get divorced their chosen the marital property regime will be followed when dividing assets. The assumption is made that whether a couple are still living in the country where they married or signed the marital property regime or if they have moved to the UK the marital property regime will be applied.

However, the top London divorce solicitors say that if an international couple move to the UK, after signing a marital property regime document in another country the position is not straightforward.

How can OTS Solicitors help? 

OTS Solicitors family law and immigration law teams provide cohesive advice to international families, including advice on all types of relationship agreements such as cohabitation agreements, civil partnership agreements, prenuptial agreements, postnuptial agreements and separation agreements.

To discuss how the family law team at OTS Solicitors can help you with a prenuptial agreement or other type of relationship agreement please call us on 0203 959 9123.

International families and divorce court jurisdiction  

The best London divorce solicitors say that it can be a very expensive mistake to make to not get your solicitor to advise you on court jurisdictions if you are part of an international family and you are signing a marital property regime document.

That is because the English family court could have jurisdiction to hear any future divorce and financial proceedings if:

  • You or your spouse have a home in England or plan to move to live in England;
  • You or your spouse have substantial connections to England and could raise jurisdiction.

The law on court jurisdiction is very complex and the top London divorce solicitors say that the facts of every case have to be looked considered carefully. However, if you know that your family has current connections to England or that an engaged couple is thinking of moving to live in England the following things need to be considered:

  • Whether a mirror agreement should be drawn up in England in addition to the marital property regime document signed by the engaged couple in their current home country;
  • Whether a prenuptial agreement should be drawn up in England in addition to the marital property regime document;
  • Whether, after the marriage, a couple should sign a postnuptial agreement. 

When it comes to international families, wealth protection and divorce there is “no one size fits all” policy. Every family and their international connections and home countries are different. Therefore, they have to be looked at individually on a case-by-case basis.

What the best London divorce solicitors will tell a fiancée, who is asking for information about the status of prenuptial agreements in England, is that under current English law a prenuptial agreement is not legally binding on the English divorce court. That is why, in the case of many families with international connections, it is important to not only sign the correct marital property regime document in the home country but to say, in any mirror or English prenuptial agreement, that the home country court will have jurisdiction to hear the divorce proceedings and not the English courts.

The status of prenuptial agreements in England

The reason why divorce court jurisdiction is so important when a couple come from an international background is that in England prenuptial agreements are not legally binding and despite a spouse thinking that the English court would not have jurisdiction to make divorce and financial court orders the court may do so.

That is why, in the view of top London divorce solicitors, it is vital that steps are taken to protect family wealth in international families. This can be achieved through the signing of marital property regime documents and, if appropriate, with an English mirror or prenuptial agreement to confirm that the court in the alternative court jurisdiction is the country in which the divorce and financial claims will be heard.

Of course, there is a caveat, as although English divorce courts are renowned as being generous to the financially weaker party to the marriage; consideration has to be given to how generous the other potential court jurisdictions would be before attempting to limit the English court jurisdiction.

The best London divorce solicitors say that whilst England prenuptial agreements are not legally binding in divorce proceedings they do carry weight and are a worthwhile exercise for the majority of international families where England is a potential divorce jurisdiction.

The leading case on prenuptial agreements remains the Supreme Court case of Radmacher v Granatino. The court gave ‘significant weight’ to the prenuptial agreement and this resulted in the husband receiving significantly less than he would have received if no prenuptial agreement had been signed.

The Radmacher case involved an international family, as the spouses were French and German with the family living in London and New York.  The court decided that:

  • Whilst a husband and wife cannot oust the jurisdiction of the court by entering into a  prenuptial agreement , the court should give effect to any prenuptial agreement that was:
    •  Freely entered into by each party;
    • Entered into with a full appreciation of the implications of signing the agreement.

Unless, in the circumstances at the time of the divorce and financial court proceedings, it would not be fair to hold the parties to the prenuptial agreement.

  • The fact that a husband or wife may receive significantly less under the terms of the prenuptial agreement than he may or she may have received if they had not signed the agreement is not sufficient reason to not uphold a prenuptial agreement;
  • The failure of a prenuptial agreement to meet the parties’ needs could render it unfair to hold the parties to their prenuptial agreement.

The Radmacher case emphasises the importance of a prenuptial agreement that is considered by an English court needing to be fair or to meet the needs of the parties to the marriage. The top London divorce solicitors say that the question of ‘needs’ has to be considered in every case as the needs assessment will very much depend on the standard of living enjoyed by the family during the marriage  and the length of the relationship .

How can OTS Solicitors help?

For family law advice on prenuptial agreements and relationship agreements, please contact the family law team at London based OTS Solicitors. The family law team will be happy to talk to you about your options and the type of relationship agreement that may best suit your needs. Please call us on 0203 959 9123 to discuss your options with an experienced family law solicitor.

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