Ensuring a successful outcome
It used to be the position in England that nothing agreed between a couple could have any impact on the outcome of family court proceedings. Often such agreements were given no weight whatsoever.
However, thanks to a series of cases leading up to a 2010 Supreme Court decision (Radmacher in October 2010), English law has now developed so that premarital agreements, marital agreements and other family law agreements are given substantial weight. Quite possibly the terms of an agreement will be followed into an order of the court.
Key points to bear in mind are:
- It is important to show that both parties fully understood the implications of entering into an agreement and that it was fair at the time it was entered into and at the time it is enforced, often a time of divorce
- Although it is not essential that there should have been independent legal advice and disclosure, this is invariably important to ensure that it is fair and that the parties understood the implications
- The choice of forum, the country where proceedings will take place, can be very important
We deal with many cases involving marital agreements entered into abroad and we are very conscious of the different, often lesser, requirements for agreements in many countries.
Although prenuptial agreements have not yet fully entered into English culture, an increasing number of couples are asking for such agreements and we have extensive experience in preparing them for both UK-based and international families.
We have an agreement which specifies that if there were any family proceedings then they should be in a particular country. Will England also consider this as not legally binding?
It is conventional with international families to include what is known as a 'jurisdiction clause' in a marital agreement which specifies the preference for the country where any proceedings should take place. England places great weight on these clauses in marital agreements. It is quite likely that in any forum dispute, England will give considerable weight to a jurisdiction clause in deciding which is the more appropriate country to deal with a case. However such an agreement is irrelevant within the EU as to where the divorce takes place: all that matters is who issues first.
But the financial outcome abroad would have been different due to the marital agreement. Will England just ignore it altogether?
Not at all. It is quite likely England will consider what would have been the outcome if the case had gone ahead abroad and take this into account in deciding a fair English settlement. The court has the discretion to take foreign aspects into account such as foreign marital agreements, and will do so if circumstances show that this is fair. The law in respect of marital agreements applies equally to foreign marital agreements.
We are an international family presently in England. We come from countries which habitually have marital agreements. Would you recommend that we should enter into one?
Invariably yes. It may be that you will live at some time during the marriage in your home country or in another country in which marital agreements are customary and binding. They may become binding in English law subsequently. We recommend that specialist independent legal advice is taken. Lawyers in the countries with which you have close connections or in which you may subsequently live should be involved in the drafting of the agreement. This will maximise the likelihood of it being binding or being strongly taken into account wherever you may be at the time of any subsequent divorce. This sort of agreement can take some time to finalise so put in hand preparation well in advance of the wedding.
I have a marital agreement specifying a EU country should deal matters of maintenance and needs. How does this work?
This is binding on the English courts following a new EU law in June 2011. Even if England is dealing with the divorce, it has to transfer any issues of maintenance, interpreted as meaning 'needs', to the country agreed by the couple, even if that agreement was without legal advice or disclosure and circumstances may have changed significantly.
Our marital agreement was entered into in a country which has applicable law, and we have a clause in which we specify that we would want the laws of a particular country to be applied. As England only ever applies its own laws, how would this clause be treated?
This applicable law clause would be treated by the English courts as if it was a jurisdiction clause and as an expression of a preference that any proceedings were dealt with in the country of the chosen applicable law.
I am intending to enter into a marital agreement abroad. What do the English courts prefer to see to give it substantive weight on any later divorce settlement?
The English Courts still prefer to see:
- A pre-marriage agreement was entered into in good time before the marriage, to overcome suggestions of duress and undue pressure
- Independent legal advice has been sought by both parties to the contract before the document is signed, or at least was available
- There has been full financial disclosure of financial and other relevant circumstances of each spouse
- It is, in broad terms, fair and reasonable
- There was no duress or misrepresentation
It is always a matter of judicial discretion, and each case is determined on its own facts. The existence of marital agreement is one factor to be considered in deciding which country is the best one for the divorce proceedings.¬ If the agreement will be upheld as binding in another country and this agreement is favourable to you, then that country may be better for a divorce than England despite this recent change in the law.
I entered into a pre-marriage or other marital contract in another country. Will an English court uphold it?
Pre-marriage and other marital contracts are not legally binding in England at present. However in October 2010 the UK Supreme Court significantly changed the status and weight given to marital including pre-marital agreements. They held that “the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.
That case concerned a German pre-marital agreement which made no provision for one spouse even though the other was very wealthy but which the English court upheld, although the court did make provision for the needs of the spouse in their capacity as a parent. The English courts will give weight to an agreement even if no separate independent advice or disclosure provided reasonable needs are satisfied.
