International nuptial agreements

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.