Can I divorce in England with a foreign prenup?

English jurisdiction and the recognition of international prenups

It is possible to commence divorce proceedings in England if you entered into a prenuptial agreement abroad. It is common for international couples to live in various jurisdictions, enter into a nuptial agreement abroad, and later initiate divorce proceedings in England and Wales.

Whether you can file for divorce in England depends upon whether the necessary jurisdictional criteria are met on the date you file for divorce (rather than when you entered into a prenuptial agreement), namely the requirements concerning domicile or habitual residence. These are complex legal concepts, on which specialist legal advice is required, since how they apply will depend upon the specific facts and circumstances of the case.

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why jurisdiction choice matters

Vardags can help you ascertain the most suitable jurisdiction in which to get divorced based upon your individual situation, including in circumstances where you have entered into a prenuptial agreement abroad (if you are able to issue divorce proceedings in more than one jurisdiction). This is an important decision, which can have far reaching financial implications, since each jurisdiction treats prenuptial agreements differently.

Although your prenuptial agreement may be enforceable in the country where it was entered into, this does not necessarily mean that it will be enforceable in England. Whether a foreign prenuptial agreement is valid and/or enforceable depends upon the individual circumstances and facts of each case, as well as the specific terms of the agreement.

prenups in england & wales - Radmacher v granatino

Vardags have extensive knowledge and experience of the law applying to prenuptial agreements, having successfully changed the law in this area by acting for Katrin Radmacher in the landmark Supreme Court case of Radmacher v Granatino. 

Here, the Supreme Court made it clear that whilst prenuptial agreements are not automatically binding in England, the family courts should give effect to an agreement that is freely entered into with a full appreciation of its implications, unless it would be unfair to hold the parties to the agreement.

As such, the English courts retain ultimate discretion when it comes to ordering a financial settlement upon divorce. Even if the prenuptial agreement is binding in the country where it was entered into, the court may choose to depart from it. The court must consider whether the outcome is “fair”, and it is not obliged to give effect to a nuptial agreement if vitiating factors exist, or if it does not deem it fair.

enforcing a foreign prenup

To understand whether a nuptial agreement is enforceable in England and Wales, obtaining specialist family law advice will be crucial.

Vardags have an extremely developed understanding of the issues and complexities arising in cases involving foreign prenuptial agreements, and the strategic factors involved. In light of our routine involvement in such cases, including the seminal Radmacher case, we have an unparalleled insight into the English court’s approach to these agreements, and can draw on this experience in a manner which best suits you.

Frequently asked questions

Can I make an international prenuptial agreement?

No, given that different jurisdictions treat prenuptial agreements differently, it is not possible to enter into a nuptial agreement which can be enforced worldwide. Therefore, if you and your partner have moved from the country where you entered into a nuptial agreement, it may be worth creating a new one according to the laws and criteria of the new country.

Will the English court consider the law where the nuptial agreement was created?

If a divorce is heard in England and Wales, English and Welsh law will apply, regardless of where the parties are from. However, if the parties had entered into a nuptial agreement in another jurisdiction, the law of that country will be considered, as it relates to their personal circumstances and can provide context of the parties’ intentions. For example, if the parties grew up in countries where nuptial agreements are binding, and signed the agreement in a country where they are binding, this is more likely to suggest that they intended to be bound by the agreement. 

Vardags’ team of top international divorce lawyers deliver a bespoke legal service to HNW and UHNW individuals, providing specialist advice on nuptial agreements.