We know that English courts recognise the validity of prenuptial agreements when they meet the well-established requirements. These include the need for both parties to get independent legal advice, that there is full financial disclosure by both sides and that there is no suggestion that one side was pressurised in any way into signing the agreement. But what if your prenuptial agreement ends up being examined by courts in another country because that country has the jurisdiction to decide the terms of your divorce? Will the terms of the agreement be followed?
Could Your Divorce Be Decided By A Foreign Court?
This could happen if there is an international dimension to the relationship. Are the individuals getting married from different countries for example? Are any assets located abroad? Are the parties domiciled somewhere other than the UK?
Even if these international considerations don’t apply at the time you marry, it’s worth bearing in mind that your situation may change during the course of your marriage. You or your spouse may go to work in another country from an extended period or one or other of you may inherit foreign assets.
Remember a prenuptial agreement only becomes relevant when a marriage breaks down and a couple decides to get divorced. And if any of the considerations mentioned above apply to you it’s possible that courts in a jurisdiction other than England and Wales might be able to decide the financial terms of your divorce. Will that court uphold your prenup?
Getting Specialist Advice
If there is a possibility that your prenup may be interpreted by a foreign judge we would urge you to get advice from specialist international family lawyers before you finalise your prenup. At Brookman Solicitors we deal regularly with cross-border divorce issues. We have extensive in-house expertise on international matters and close links to family lawyers across the world. This enables us to take all the necessary steps to ensure that your English prenup has the best chance of being enforced in any jurisdiction that may ultimately have the power to decide on financial matters if your marriage does come to an end.
Our advice will cover:
- The chances of the English agreement being enforced in another country
- Any legal procedures you need to follow in the foreign country to increase the chances of enforcement of the prenuptial agreement
- Whether we should include specific terms in the agreement, for example a governing law clause and/or a jurisdiction clause that will demonstrate to any international judge the intention of the parties regarding enforcement at the time the agreement was entered into
- Whether you should make separate agreements for each potential divorce jurisdiction