International nuptial agreements

illustration for International nuptial agreements

When parties to a marriage have connections to multiple countries, it's important to consider the implications of these links when reaching a nuptial agreement. It may affect how the agreement is interpreted and how enforceable it is.

What nuptial agreements are

A nuptial agreement is a document which summarises what you and your partner have agreed will happen to your finances if your marriage were to breakdown. Whilst these agreements can be helpful to most couples, they are particularly important for those with high net worth and with assets abroad.

They can be prepared and signed before the marriage, which is known as a prenuptial agreement, or they can be signed after the marriage, which is known as a postnuptial agreement. It may be that you and your partner have lived or continue to own property abroad. These assets would still need to be considered on divorce and therefore considered as part of any nuptial agreement.

Nuptial agreements are not legally binding in England and Wales However, since a court decision in 2010, they will generally be upheld by the court if certain conditions are met. The agreement must be freely entered into, you both must have a full appreciation of the implications of the agreement, and it must be fair to hold you to the agreement. Seeking legal advice from an expert in good time before a wedding plays a crucial role in meeting these conditions.

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An international dimension

There are many ways in which an international element is created in a marriage. This could be through where parties live, where they work, where they own property and their nationality. There are also the concepts of habitual residence and domicile which are not always straightforward to understand, but are critical to establish what country may ultimately have jurisdiction to hear any court case relating to the marriage. These international elements of your marriage may mean that you are eligible to apply for divorce in multiple jurisdictions.

You and your partner may agree on how you want your assets divided on divorce, but an international prenup will detail how this agreement will apply in different countries that are relevant to you.

How assets of a marriage are treated in different countries will vary, so it's important to understand how each asset may be treated so that it can be dealt with in the nuptial agreement. For example, in some countries, a couple can choose how their property will be treated by the law during their marriage and on divorce; for example, a couple may choose a separation of property regime or matrimonial property regime.

Understanding how your assets may be treated in other countries and seeking advice on this will be important to show that the agreement was entered into with full appreciation of its implications.

How the nuptial agreement itself is treated and enforced will also vary between countries. Some countries will uphold nuptial agreements as binding, whilst other courts may not. How a country treats a nuptial agreement will affect the advice you need.

Where you and your partner spend time frequently in different countries or have intentions to move to a foreign country in future, you may wish to consider mirror agreements in those countries. This would involve having an agreement in each relevant jurisdiction that has the same basic terms of how assets are dealt with on divorce, but the agreements themselves may well be drafted in a way that ensures they are enforceable in that specific jurisdiction. Mirror agreements have to be drafted carefully to ensure that one does not invalidate the other and that all the terms are consistent between the agreements. This requires international lawyers to work closely with one another to achieve the couple’s goals.

How we can help

Our lawyers are experts in cross-border wealth protection. We have extensive experience in advising clients on the law of nuptial agreements in England and Wales, how foreign agreements may be interpreted by the courts here, and how to reach an agreement that protects assets here and abroad.

We work with a network of fellow lawyers around the world to ensure that our clients receive the advice they need on the treatment of their assets and nuptial agreements in different jurisdictions.

We have successfully:

  • Advised a successful business owner due to inherit family wealth in the future from Singapore on how to protect his future inheritance.

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Our team of specialist family lawyers are here to support you if you're facing issues related to international family arrangements. Speak to our team today. 

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International nuptial agreements FAQs

You should seek advice as soon as possible if you or your partner have any intentions to move abroad in the future. This is because the nuptial agreement that you are drafting now in England and Wales may need to incorporate French law to ensure it is potentially enforceable in future.

You should also seek advice from a French lawyer on nuptial agreements to ensure that you understand how assets are treated on divorce there and how your English prenup may need to be drafted to ensure enforceability in France.

If you don’t seek legal advice in both jurisdictions early, then there is a risk you may not fully understand the implications of the agreement you are making which may undermine its validity in future.

It's often advisable to have both a prenuptial agreement and a postnuptial agreement because it shows the continuing and unchanged position of both parties after the stress and excitement of the wedding has passed. Where the prenuptial agreement is detailed and fully considered, the postnuptial agreement can be a simple document which confirms that they still agree to the prenup.

Where the prenuptial agreement may have been considered with less time or signed only shortly before the wedding, it's very important to consider a postnuptial agreement. One of the tests of whether a prenup will be upheld is whether the agreement was freely entered into and that the parties had full appreciation of the implications.

Where the document is signed only shortly before the wedding, there could be arguments that there was pressure on one party or there was insufficient time to consider it all properly. A postnuptial agreement can address these issues by allowing the parties time after the wedding to properly consider the terms and make amendments if they wish to.

If your marriage has broken down and you are looking to divorce and enforce the prenup in England or Wales, you will first need to ensure that the courts here have jurisdiction to hear your case. Their ability to hear your case will depend on whether you can establish domicile and/or habitual residence in England and Wales; a family law expert will be able to advise you on whether you meet the criteria.

If you are able to issue divorce proceedings here, then the weight the court will give to the prenup will depend on the terms of the nuptial agreement itself and the circumstances under which it was drafted and agreed. Prenups are not legally binding and have to meet certain conditions in order for the court to uphold them. This applies to foreign prenups as much as it does to nuptial agreements drafted in England and Wales.

These legal concepts are complex and go beyond just simply where you live and work. That is why it's important to seek specialist legal advice on the topic.

Habitual residence generally refers to the place that you have based yourself and you have your centre of interests.

Domicile relates to what you consider your permanent home and can be acquired in three ways. The first is your domicile of origin which is where you were born. This can be displaced by obtaining a domicile of dependency which is appropriate to children under the age of 16 and those lacking mental capacity, and a domicile of choice which depends on where you live and your intention to permanently reside there.

You should seek legal advice on these topics as they will affect which countries have jurisdiction to hear your case.

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