International Post and Prenuptial Agreements Solicitors

Are they worth having?

In 2010, the pre-nuptial agreement (an agreement made before marriage) landscape of England and Wales changed forever, with the case between a German and an Italian national, living in England, Radmacher v Granatino [2010] UKSC 42. 

Two years earlier, The Privy Council had looked at the validity of a post-nuptial agreement (an agreement after a marriage) made by a couple who lived in the Isle of Man, MacLeod v MacLeod [2008] UKPC 64.

At present, there is no law in England and Wales that makes every marital agreement, pre- or post-nuptial, binding. The importance of the agreement is, however, (because of Radmacher) unlikely to be ignored by a subsequent divorce court, unless the circumstances in which it was negotiated can be shown to have seriously disadvantaged the economically weaker party.

The best advice to anyone entering into such an agreement is “don’t be surprised if you are broadly held to it”, and so for the past ten years lawyers have attempted to outdo each other in their negotiation and drafting of these agreements, in the hope that they may pass the test of time.

Experience has shown that a fairly negotiated agreement, if challenged through the courts, is likely to result in the economically weaker party to a marriage being limited to their needs, and if that person is an economically weaker husband, the settlement will be less generous than if he had been a wife.

The agreements do achieve a greater certainty of outcome, but do not extinguish the need for lawyers in the event of divorce, far from it.

Most of these agreements do not originate in the romantic bliss of first love; lawyers, parents and trustees are the usual promotors, as the guardians of hard earned or inherited wealth.
Occasionally there can be generosity of vision, but mostly the negotiations are led by lawyers whose belief is that the harder fought the process and the greater the number of drafts, the more certain will be the invulnerability of the final draft.

“Pre-nup Remorse” is becoming a common feature of married life in the 21st century. In the same way that many couples wake up one morning, to find the rose tinted spectacles of marriage have turned an unhealthy shade of grey, so to the pre-nup forged in love, only to be utilised in war.

A one-sided agreement can become very hard to live with, as it guarantees a choice between an unwelcome personal economic downturn and a resentful forced co-existence.

The geographical movement of families makes the post-nuptial agreement a valuable but underused resource. Moving country for work, the education of children or retirement, can result in a married couple becoming vulnerable to local law. A movement to England from Scotland, for example, could result in a radical shift in the financial outcome of a divorce, as would a move to China.

The Importance of 360 Degree Advice

International families or families on the move need to consider the impact of any marital agreement in the jurisdiction that they reside in, “when the music stops”. The ability to divorce changes as habitual residence is established, and for many, the country in which they live at the time of marriage will not stay constant.
Strong multi-jurisdictional advice is often essential. The pre-nuptial and post-nuptial agreements we draft frequently involve the consideration of the laws of a number of countries, and are drafted in tandem with colleagues across the world.

The Importance of Enforcement

A marital agreement may, over time, lose any value as an international family moves country.
An agreement that is binding in one country may have no value somewhere else.

The geographical location or the structuring (trusts and corporate structures) of assets may make it impossible to get hold of the assets, or income promised by the agreement.

The time to consider the enforceability of a marital agreement, not just in law but in practice, is at the time it is drafted, or before a family or their assets move jurisdiction.

On the basis that “possession is 9/10ths of the law”, some smart marital agreements ring fence part or all of the assets to ensure they are accessible if needed.

Experience

Cross jurisdictional advice and drafting of pre- and post-nuptial agreements between the following jurisdictions:

• England and Wales, Scotland, The Channel Islands, France, Monaco , Switzerland, Israel, Kuwait, Oman , UAE, USA (California, Florida, Massachusetts New York, Texas), Australia

Advising and representing clients in respect of disputes connected to cross jurisdictional pre-nuptial agreements between England, Channel Islands, UAE, USA, Monaco and Switzerland.

Michael Rowlands is a fellow of the International Academy of Family Lawyers, and has been representing international families for over 30 years, with a particular connection with The UAE, MENA Region, North America, Japan, Switzerland and Monaco.