Pre-Nuptial agreements or 'pre-nups' are contracts entered into by couples before they marry. They allow couples to organise their finances during marriage and plan for what will happen to money and property should the marriage break down and end in divorce.
Although Pre-Nuptial agreements are legally binding in many countries outside the UK, with some countries accepting them as normal practice before marriage, pre-nups are not automatically enforceable in England and Wales.
Following a Supreme Court decision in 2010 in the case of Radmacher, pre-nuptial agreements should now be upheld in this country if they are freely entered into by both parties (with an understanding as to the implications of the pre-nup) and are fair in the circumstances of the case.
The Radmacher case involved a German heiress and a French husband who had entered into a pre-nuptial agreement in Germany. This pre-nup would have been enforceable automatically in Germany and France.
When considering the ‘foreign element’ the Supreme Court confirmed that English law must apply to the question of enforceability for foreign pre-nups. It is not therefore the case that pre-nups, which would be binding in the home country of the parties, will automatically be upheld in England and Wales. The fact however that the agreement would be binding in the respective home countries of the parties may be evidence that they understood the terms and intended to be bound by them.
So, how are Pre-Nuptial Agreements recognised in other jurisdictions? Let’s look at some examples.
France – pre-nups are considered ‘the norm’ in France. Both parties to a marriage must appear before a notary public before their wedding and select one of the regimes matrimoniaux that are offered by the French Civil Code. If a couple does not want to enter into a Pre-Nuptial agreement then a default ‘community property regime’ governs the legal relationship of the spouses.
Germany – Similar to France, Pre-Nuptial agreements in Germany need to be executed before a notary. A set matrimonial property arrangement applies between the spouses automatically upon marriage unless they select a different arrangement by contract.
USA – Pre-nups are legally binding throughout the United States but there are variations between each state. For example, assets acquired during marriage (known as ‘community property’) are considered jointly owned in certain states and must be equally distributed between both parties if the marriage ends in divorce.
Australia – Pre-Nuptial agreements are enforceable in Australia and are also known as Financial Agreements. They are legally binding as long as they are signed by both parties and that the lawyers have signed a separate statement saying that they provided independent legal advice on how the pre-nup will affect each person and whether it is fair to both of them.
International issues can often complicate the terms of a Pre-Nuptial agreement and it is important to seek expert legal advice in those jurisdictions regarding the enforceability of any pre-nup from another country.
For an initial consultation call the Family Solicitors at Slater and Gordon UK on freephone 0800 916 9055 or contact us online and we will call you.
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