A nuptial agreement is an agreement made either before or during a marriage or civil partnership which regulates the finances of a couple during their relationship and determines how their assets should be divided upon divorce, separation or dissolution.
Where one or both parties to a marriage or civil partnership have an international place of residence, citizenship or business, mirror agreements are often drafted which maximises the chance of the agreed terms applying in multiple jurisdictions. A mirror agreement will replicate the terms of an agreement already prepared in another country. It may be prepared in a slightly different way to comply with the requirements of the law in that particular country, but it aims to have the same effect in terms of the overall outcome.
The legal position in England and Wales in relation to nuptial agreements can be summarised in the following key points:
- A nuptial agreement is not legally binding. However, it will be considered to be ‘highly persuasive’ by a family court, provided it meets certain criteria and is considered to be ‘fair’ to both parties. As a result, it can provide certainty in terms of what would happen in the event of a future separation.
- There is a set-criteria which must be followed in order for an agreement to be properly prepared. It must be entered into freely and without duress, full financial disclosure of each party’s assets must be provided and each party must have the opportunity to obtain independent specialist legal advice.
- However, the law and criteria will not be the same in all countries and advice will be needed in each country to confirm the position. The question of whether an agreement prepared in England and Wales will be upheld in another country will depend on the legal status given to the agreement under their law. That is why mirror agreements are often prepared, to ensure that you have full protection in all jurisdictions.
The law in England and Wales take a discretionary approach to foreign nuptial agreements being upheld as the enforceability will depend on the circumstances of each case and whether the terms of the foreign agreement are fair from an English legal perspective.
If you would like to know more, please contact me or a member of our Family Law Team.
