Prenuptial agreements are a valuable tool for couples wishing to protect their financial interests before marriage. They may provide peace of mind, but if one or both parties in the relationship lives an international lifestyle, splitting time between countries or holding assets abroad, the prenup process becomes more complex.
Natasha Grande, partner and co-founder of G&G Law, wrote an article for IFA Magazine explaining why prenups are more complex when clients operate across different jurisdictions.
At G&G Law, we work with clients whose lives routinely span multiple jurisdictions. When they sign a prenup, it’s not done and dusted. It requires careful, ongoing consideration to ensure the prenup remains enforceable wherever it may ultimately be tested.
Why are international prenups more challenging?
There is unfortunately no one kind of prenuptial agreement that can be enforceable anywhere in the world. In her article, Natasha explains that different countries have different legal frameworks. In France, Spain, Germany and Italy, there’s an added layer of complexity as couples can elect into different marital property regimes. In the US, each state has its own rules.
Prenups in England and Wales differ from arrangements in many other jurisdictions as they are not automatically legally binding. That doesn’t mean there’s no point writing a prenup – they can be upheld by the courts if they meet the standards established by caselaw, in particular the landmark Radmacher case of 2010.
Those standards require that both parties:
- received independent legal advice;
- full financial disclosure was made;
- the terms are fair to both parties;
- neither party was subject to undue pressure; and
- the agreement was properly executed as a deed.
These are the ‘tests’ that every prenup must pass. A series of messy divorces since Radmacher have made clear that failing to meet these standards, particularly if one party did not fully understand the prenup, can render the agreement ineffective and the court will disregard it.
What should high net worths with international lives do about prenups?
For clients with assets or connections in multiple countries, it is essential to source specialist legal advice in each relevant jurisdiction. In many cases, parties should prepare ‘mirror’ agreements: documents containing the same terms but drafted to comply with the specific legal requirements of each country. Experienced family lawyers will be able to help with this.
Clients should also think carefully about where they intend to live after marriage, and which jurisdiction they have the closest ties to. This will affect the plans for their prenup, and should their circumstances change after the wedding (if the family moves overseas, or their business interests are relocated), a post-nuptial agreement may be worth considering.
If you think you need advice, don’t wait
International prenuptial agreements are not a one-size-fits-all exercise. As Natasha’s article for IFA Magazine explains in more detail, they require thorough due diligence of assets conducted by an experienced team of advisors.
If you are planning to marry and have international connections, or if you think your prenuptial or postnuptial agreement needs revising, speak to a family lawyer early in the process to ensure your agreement does what it intends to.
