Divorce in the UK if you made a prenuptial agreement abroad

It is possible to commence divorce proceedings in England if you entered into a prenuptial agreement abroad. However, whether you can file a divorce petition in England depends upon whether certain jurisdictional criteria are met on the date on which you file the petition (rather than where you entered into a prenuptial agreement). These jurisdictional requirements are set out in an EU regulation known as “Brussels II”. The English court has jurisdiction to hear the divorce if certain criteria with respect to domicile and habitual residence are met. These are complex legal concepts, on which specialist legal advice is required, since how they apply depends upon specific facts and circumstances.

Vardags can help you ascertain the most suitable jurisdiction in which to get divorced based upon your individual situation, including in circumstances where you 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 which seek to regulate the division of assets upon divorce differently. Although your prenuptial agreement may be enforceable in the country in which it was entered into, this does not necessarily mean that it will be enforceable in England. Whether a prenuptial agreement entered into abroad is valid and/or enforceable depends upon the individual circumstances and facts of each case, and the specific terms of the agreement.

Vardags have extensive knowledge and experience of the law applying to prenuptial agreements, having acted in the seminal 2010 Supreme Court case of Radmacher v Granatino, which changed the law in this area. In this case, the Supreme Court made it clear that whilst prenuptial agreements are not binding in England, the English courts should give effect to an agreement that is freely entered into with a full appreciation of its implications, unless it would not be fair to hold the parties to that agreement. The English courts do, therefore, retain ultimate discretion when it comes to settlement upon divorce, and will not simply automatically hold the parties to a premarital agreement, even if it is binding in the country in which it was entered into. The court must still consider whether the outcome is “fair”, and is not obliged to give effect to such a nuptial agreement if vitiating factors exist, or if it does not deem it fair.

Specialist family law advice on any prenuptial agreement entered into abroad will therefore 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 notably in Radmacher in the Supreme Court, 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.

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