Prenups and International Divorce

Following Radmacher v Granatino, foreign nationals living in the UK who have entered into a prenuptial agreement/marriage contract in their home state may have been advised that their agreement was likely to carry significant weight if they got divorced in England in the future.

The recent case of Z v Z involving a French couple living in London may have poured cold water on that notion.  In this case, the total assets were £15 million (of which 90% were in the husband’s sole name).  On marriage the couple entered into a separation de biens agreement, i.e effectively an agreement to keep their assets separate during their marriage and on separation.

Nevertheless, after assessing the wife’s needs, the English court awarded her 40% of the total assets.  This decision for the wife would have been inconceivable in France but under French law it is not possible to exclude (or limit) a claim to maintenance by agreement which meant the English Court was able to make the award on a needs basis, albeit needs generously assessed.

This case contrasts markedly with Radmacher where the husband agreed not to make any financial claims against the wife and therefore was limited to an award based on the needs of his children.  However, what would have happened in Radmacher if there had been no children and if there was a binding maintenance agreement under German law?  The situation would not be the same for every foreign national but in each case English advice needs to be taken before a foreign couple move to the UK. 

The advice will depend on what can be done under the local law but the French husband in Z v Z would have been well advised to have had a subsequent agreement which fixed jurisdiction to deal with maintenance in France.   This would have prevented the English Court dealing with maintenance and almost certainly would have led to less generous orders in France.

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