Can I divorce in England with a foreign prenup?

What counts as an international element in a prenup?

Many couples today have international connections, through nationality, residence, assets or future plans. These cross-border elements can significantly affect the validity, enforceability and interpretation of a nuptial agreement. International elements may include:

• one or both spouses being foreign nationals
• assets located in more than one country
• domicile or habitual residence outside England and Wales
• plans to relocate or retire abroad
• a previous or existing nuptial agreement made in another country

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why jurisdiction choice matters

Vardags can help you work out the most suitable jurisdiction in which to divorce based on your individual situation, including where you have entered into a prenuptial agreement abroad (if you are able to start divorce proceedings in more than one country). This is an important decision with potentially far-reaching financial implications, since each country treats prenuptial agreements differently. For example:

• England and Wales: prenuptial agreements are not automatically binding, but they are given significant weight by the courts.
• France and Germany: prenuptial agreements have a long history of statutory recognition and are generally upheld, provided they meet the formal requirements.
• The United States: enforceability varies from state to state, with some states governed by specific legislation and others by common law principles.

Although your prenuptial agreement may be enforceable in the country where it was signed, this does not necessarily mean it will be enforceable in England. A couple who marry in London but later move to New York, or who divorce while one spouse lives in Paris and the other in Dubai, may find their agreement assessed under a legal system they never anticipated. Whether a foreign prenuptial agreement is valid or enforceable depends on the individual facts of each case, as well as the specific terms of the agreement.

prenups in england & wales - Radmacher v granatino

Vardags has extensive knowledge and experience of the law on prenuptial agreements, having changed the law in this area by acting for Katrin Radmacher in the landmark Supreme Court case of Radmacher v Granatino [2010].

In that case, the Supreme Court made it clear that while 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 it. As a result, if you have freely entered into a prenup, it is likely you will be bound by it if you divorce.

However, the English courts keep ultimate discretion when ordering a financial settlement on divorce. Even if the prenuptial agreement is binding in the country where it was signed, 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 (such as pressure or misrepresentation), or if it does not consider it fair.

How to make an international prenup more likely to be upheld

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.

Include jurisdiction and choice of law clauses

Most international prenups include a choice of law clause, stating which country’s law should govern the agreement, and a jurisdiction clause confirming each party’s domicile and habitual residence and where they intend any divorce to take place. A choice of law clause is only as effective as the court asked to enforce it. Some countries will respect the parties’ chosen law, while others will apply their own rules, particularly for property within their borders. In England and Wales, the court will apply English law to the financial settlement, although the chosen law can help show what the couple intended.

Consider separate agreements for each country

The practical answer is often to draft consistent agreements in each relevant country, or to include country-specific provisions in a single document, translated and notarised as necessary. A couple with assets in England and Switzerland might have an English prenup and a separate Swiss marriage contract, each tailored to its own legal system. This is more complex and more expensive, but it significantly reduces the risk of an agreement being disregarded.

Meet the formal requirements in each country

Each legal system has its own formal requirements. In many civil law countries, the agreement must be notarised, and some countries require it to be registered with a court or public authority. Failing to meet the requirements of a relevant country can make the agreement void there, however carefully it was drafted elsewhere. One of the most common misconceptions is that a single document signed in one country will automatically be recognised everywhere. It will not.

Give full financial disclosure

Full and frank financial disclosure is a cornerstone of prenup practice in England and Wales, and a lack of it is one of the most common grounds for challenging an agreement. Other countries set different standards. The safest approach is to meet the highest disclosure standard among the relevant countries, usually by attaching a detailed schedule of assets, liabilities, income and expectations (such as anticipated inheritances or business growth).

Take independent legal advice in each relevant country

Each party should receive independent advice from a lawyer qualified in every country that might be relevant to the agreement, with all of them working in coordination. This is not cheap, but it costs far less than an international prenup that fails because one party was not properly advised in a key jurisdiction.

Enforcing a foreign prenup in England

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

Vardags has a highly developed understanding of the issues and complexities that arise in cases involving foreign prenuptial agreements, and the strategic factors involved. Through our routine involvement in these cases, including the landmark Radmacher case, we have unparalleled insight into the English court’s approach to these agreements, and can draw on that experience in the way that 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.