Skip to content

International Family Law and pre-nups

Jan 02, 2017   ·   5 minute read

In the 15 months since Evolve Family Las has been in business, we have seen a significant rise in the number of requests for help from families with international family law concerns. This series of blogs looks at the most frequent queries, starting with pre-nups.

As a specialist family finance solicitor, with many years of experience in preparing pre-nups and post-nups, I have seen an increase in enquiries about nuptial agreements which have an international element, not just from couples who are based in Manchester and the North of England, but also from couples who are based in London and the South East of England who want expert advice at a much lower cost. That increase in enquiries is down to an increase in the following trends:

  • The number of UK residents meeting and marrying partners from other countries;
  • The number of couples who have some foreign assets such as a holiday home or a business based abroad;
  • Couples who are completely UK based, but whose families (or their families’ assets) are based abroad; normally their families are passing some of their wealth to the marrying couple (to give them a financial head-start, or for tax planning reasons) but the families realise that this wealth is vulnerable to divorce without a pre-nup;
  • The number of people who are a beneficiary of an offshore trusts;
  • The number of overseas families who have who have settled in the UK but already have a pre-nup in their country of origin.

The world is no doubt getting smaller but divorce law has not been globalised yet. So, divorce laws, practices and procedures vary widely from country to country. The unwary can therefore falsely assume that having signed a pre-nup agreement in country A that their agreement will be binding in their spouse’s country of origin B or if they decide to emigrate to country C.

Whenever I am asked to prepare a pre-nup it is as important to ask the right initial questions as it is to draft the document. For international pre-nups the questions should include:

  • Country of domicile for each of the couple. This can be (and often is) completely different from the country that they live in, and is a complex legal concept
  • Countries where any existing assets and property are located
  • Countries where any future assets and property are likely to be located
  • The country or countries that one or both of the couple may relocate to in the future, for example the plan may be to spend a lot of time in the Florida holiday home on retirement.

…not forgetting that Scotland, Ireland, Isle of Man and the Channel Islands all count as separate countries.
If the answers to any of these questions reveal a foreign connection, it is really important to work out which country the pre-nup should be based in. For quite a few couples who consult me, the answer is not England.

Lawyers can’t be ‘wedded’ to their own jurisdiction because it can make a massive difference to how assets are divided if a couple split up without having thought about the status of pre-nups in others countries. In some countries pre-nup agreements are treated as legally binding and in others they ‘are not worth the paper they are written on’.

Even if England is the right country for the pre-nup, it is important to think about whether a ‘mirror’ pre-nup is needed in the other countries that the couple are linked to, or at least having a lawyer in that other country having some input on the wording of the pre-nup, so that the agreement is executed in accordance with the relevant local law and the agreed country for choice of jurisdiction is recognised.

If advice is needed from an overseas lawyer, I can easily arrange this due to my fellowship of the International Academy of Family Lawyers, the World’s leading organisation of expert international family lawyers.

With or without international aspects, I am frequently asked if it is worth doing a pre-nup. Invariably my answer is that it is a really sensible piece of relationship planning: No-one who is getting married thinks their marriage will fail, but almost half do. It is also really helpful for the couple to think properly about their future financial security if things do go wrong. Also the English divorce courts now rarely go against a pre-nup which has been put together in the right way. In future years I believe that our attitude to pre-nups in the UK will be such that no couple will think twice about getting a pre-nup.

Preparing a pre-nup includes an element of speculation as who knows what may happen in relation to the couple’s future life together. However, it is normally possible to build in enough flexibility to deal with life changes. If life takes an unexpected course , such as a return to the UK after a marriage abroad with a foreign pre-nup, it is as well to dust off the document and get some advice on whether it remains ‘fit for purpose’.

If you would like to ask any questions about your own situation, contact me here.