In many parts of continental Europe and North America, pre-nuptial agreements or “pre-nups” are held to be legally enforceable if the parties divorce, provided that both parties received sound legal advice and signed up to the pre nuptial agreement without being coerced or bullied into doing so. As such, in much of the US and Europe pre-nuptial agreements are the norm. But will English courts pay attention to these pre-marriage agreements? They will certainly pay more attention to them since a significant Supreme Court decision at the end of 2010, involving a French former-banker husband and German wealthy heiress wife, in which a prenuptial agreement was upheld – this has set a precedent for other UK courts to follow. The Law Commission is also currently reviewing whether there should be legislation drafted to make prenuptials legally binding in England and Wales.  At present the United Kingdom and Ireland are virtually alone in Europe in their refusal to accept prenuptials as straightforward contracts. As contracts, they cannot exclude matters concerning child maintenance etc but otherwise the assumption is that adults can make their own terms. Even Malta, with no divorce, still has provision for contracts concerning marital property.  Divorce is naturally a very upsetting thing for any family to go through and none may feel it more than the children. As a parent as well as a husband or wife you will want the most efficient judicial system to oversee the process of divorce to make it as smooth and as painless as it possibly can be.  By and large western countries have two main principles: that the welfare of the child is to be assessed on a case by case basis; and that the Courts of the child’s “habitual residence” are best placed to decide. Conflicts can easily arise if presumptions are applied to say that children up to a certain age must be with their mother. Another problem is if an expatriate couple simply do not have access to local courts because they are not citizens. Then you have a legal vacuum.  Let’s say that Mrs Expat wants to return to England from continental Europe and take the children, aged eight and 10, with her but Mr Expat wants the family to stay together. One might expect that in those circumstances the local continental courts should determine the issue of custody as the children are habitually resident there, but the current waiting time for such cases is three years. In those circumstances is Mrs Expat entitled to rely on the fact that the children are British to bring them back to England and start custody proceedings in England? The quick answer is no: she cannot act without permission of the continental court. However she may be able to seek “temporary” permission to leave until the final hearing; and of course “temporary” will in the end morph into “permanent”.  The difference when it comes to the views of marriage and divorce even just between European countries can be astonishing. Let’s take the juxtaposition between Malta and England as a good example: Malta does not have a divorce law, you can only obtain an annulment, and then only in restricted circumstances. Malta will sometimes recognise as valid a divorce granted in another country. By contrast, in some respects England provides for easier divorce than almost all other European countries. This is because provided the divorce is based on the grounds of adultery or unreasonable behaviour, there is no compulsory waiting period.  In the Gulf, expatriates will have no access to the local courts because these courts are wholly religious. In these circumstances a couple from the UK who have not relinquished their domicile will have to have recourse to the English courts to pursue divorce proceedings. A similar problem arises with China, where only its citizens can petition in its courts. An expatriate may fall into a legal vacuum. This is the kind of situation where expansive English grounds of jurisdiction are so useful.  Countries have very different financial outcomes from divorce. Even if there is no prenuptial agreement, rules can be restrictive. Often the rule is simply that each person keeps what they have. Few countries are as generous with spousal maintenance as the United Kingdom. However, some apply rigid percentages of a husband’s income, an approach that is anathema to the English courts. This divergence means that getting it right at the beginning is absolutely crucial.  Lastly, there is always the question of enforcing any financial orders. A Court Order is only effective in the country that made it. If the assets are elsewhere, you can have a problem.  Some 15 per cent of UK marriages are said to have a foreign element and that probably is true across the developed world. Many of us are constantly subject to a mix of different countries' laws. A wise person takes prior advice before starting the divorce process in motion.  Henry Brookman is an international divorce lawyer for Brookman Solicitors, a London-based law firm specialising in international family law. For more information, visit their website here.
International divorce lawyer Henry Brookman gives advice to expats struggling   with the complexities of divorcing abroad.