Pre and post nuptial agreements

There are more and more international families and if you have connections with a foreign country or if your partner has, you should consider having a marital agreement. It will add legal security to your situation and will prevent difficult discussions at a later time.

Drafting pre-nuptial agreements is more and more common in international cases, or in case of remarriage or in case of high net worth to protect.

There is no legal matrimonial regime in England as such in comparison with European countries. In England marriage does not alter the way you acquire or hold your assets and income.

For a very long-time marital contracts were illicit because they tended to oust the jurisdiction of the English Court. They were contrary to public policy.

In the 70’s they were looked at by Courts as one factor among others to be taken into account when deciding financial measures upon divorce.

In 2010 the Supreme Court made a big change with the ruling of the case of Radmacher v Granatino dated 20 October 2010. Mr Granatino a French national was married to a German Heiress. With this case, Pre-nuptial agreement became a factor of paramount importance. The judges decided that the “court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implication unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

From 2010, we have been drafting more and more marital contracts. These are written, formal agreements signed as a deed in front of your chosen witness. A pre-nuptial agreement is signed before the celebration of your marriage and a post nuptial agreement is signed at any point of time during your marital life. There is no need to register your marital contract as you would do in France with a notaire.

What for?

Marital contract provides you with a degree of security. You can plan how you and your spouse will hold properties and assets, whether some assets will be joint or own solely. You will be able to decide how you intend to divide your assets, whether you intend to pay spousal maintenance in case of a permanent breakdown of your relationship. You can decide to ring-fence some of your assets, to protect your inheritance. When there are several countries involved in your relationship, it is always recommended to have a marital contract to state from the beginning how you and your spouse intend to hold and manage your financial affairs as your agreement can be seen at a later date in others jurisdictions.

Benefits of marital contracts?

Although English marital contracts are not legally binding you should plan with the expectation that your pre-nuptial or post nuptial agreement will be upheld on divorce or in case of permanent breakdown if the drafting is fair for both of you. The Court will always keep its discretion to change some of your financial provisions if they do not provide for the financial needs of your spouse. You should ensure that your marital contract is fair as judges are able to alter or adjust your marital agreement. It is important to seek legal advice to understand the clauses you can or cannot insert in your marital contract. Each contract is tailored made depending of your circumstances.

The process?

in order for your contract to be upheld by the Court, you should each seek separate representation. This is to prevent undue pressure. The contract will mention the name of your solicitor and each solicitor will provide a certificate of separate legal advice. You should also disclose your financial situation. The summary of your disclosure will be annexed to the contract. It is crucial when signing a marital contract that you have the full financial information. You should sign your marital contract 28 days before the wedding. This is to allow time to reflect and prevent arguments that you were pushed and forced to sign. In practice the insertion of a clause stating that you have started your negotiations 28 days prior to the signature will be enough.

Initiating conversations about how you will manage your finances at an early stage of your relationship proves to be beneficial for couples. It helps establishing to understand how you will both manage your financial affairs. Addressing these matters early provides clarity, security and will facilitate discussions in case of potential divorce or permanent separation. Couples frequently encounter challenges when discussing financial matters so it is important to seek legal advice in advance. Being dually qualified in France and in England I can advise on how your English marital contract will be approached by the French Courts.

If you want to discuss and seek advice whether it would be in your benefit to have a marital contract, feel free to contact me. If your partner wishes to have a pre-nuptial agreement, and you have received a draft of a marital contract, I can review it and advise in your interest. Speaking to a professional can prevent issues in the future. I am available to help.