Pre and Post Nuptial Agreements following Brexit

Will Brexit lead to more pre and post nuptial agreements?

August 3, 2016

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In this blog, Pamela Collis, a senior consultant at Family Law in Partnership, examines whether Brexit will give rise to more pre and post nuptial agreements.

Pre and post nuptial agreements (PNAs) are an increasing factor in modern British marriages. We may think the increase is due to our EU membership and the EU nationals who live here. Will Brexit affect that? Bizarrely it seems likely that Brexit will cause even more PNAs to be entered into by international families for a variety of reasons:

  • Some immigrants to Britain may find that they are no longer entitled to live here. If they are married to British citizens and their future residence is in doubt, their marriage may already be under significant strain.
  • If the couple decide to relocate to the country of origin of both or one of them, that country may well have a culture of PNAs. In England & Wales our approach to PNAs and the division of property on divorce is very different to the separate property regimes which are customary in continental countries where PNAs are far more common. How will we reconcile the differences? Probably by liaison between the British lawyer and the continental lawyer, depending on the instructions of the parties.
  • Immigrant couples who need to relocate are likely, if they can afford it, to continue to have a base in both countries. They would be well-advised to have a PNA in one or both countries to cover the position should they subsequently divorce.
  • When they relocate, the financially-weaker party may be concerned about the prospect of losing the input of the English Courts on divorce. Reassurance could be provided through a PNA.
  • By definition, those who are relocating are likely to be economically weaker as they would otherwise be entitled to remain in the UK on the basis of wealth. That does not diminish their need for a PNA but it does mean that it will need to be negotiated and drafted in the most economic way possible.
  • For the wealthy, it is clear that PNAs can make a huge difference to the outcome on divorce, particularly if the courts of England & Wales have jurisdiction. Ideally, a PNA provides the certainty which is not available from the Matrimonial Causes Act 1973 and reduces the pain, expenditure and unpleasantness of a contested financial hearing on divorce.
  • The hazards of not having a PNA were graphically illustrated by the recent decision in Juffali v Juffali [2016] EWHC 1684 (Fam) where the failure to have a PNA cost the Saudi husband, Sheikh Walid Juffali, some £53m to be paid on top of the considerable assets already held in the name of his US wife, Christina Estrada. The award was one of the largest of its kind in an English High Court money case.

As all this illustrates, the impact of Brexit is likely to be felt across international family law and by international families long before the mechanics of our departure from the European Union are finalised.

Pamela Collis is a consultant at Family Law in Partnership. She is a very senior and highly regarded family lawyer having specialised in family law for over 35 years. Pamela is known for her pragmatic and constructive style and her strategic vision. Pamela’s primary focus is international and domestic family law matters particularly the financial aspects of relationship breakdown, private law children matters (including surrogacy and international relocation) and pre and post nuptial agreements. Pamela regularly deals with jurisdiction issues, cross border tax issues and cases involving complex business valuations. If any of the matters covered in this blog have resonated with you, please contact Pamela on T: 020 7420 5000 or E: hello@flip.co.uk.