It is conventional with international families to include what is known as a 'jurisdiction clause' in a marital agreement which specifies the preference for the country where any proceedings should take place. England places great weight on these clauses in marital agreements. It is quite likely that in any forum dispute, England will give considerable weight to a jurisdiction clause in deciding which is the more appropriate country to deal with a case. However such an agreement is irrelevant within the EU as to where the divorce takes place: all that matters is who issues first.
Not at all. It is quite likely England will consider what would have been the outcome if the case had gone ahead abroad and take this into account in deciding a fair English settlement. The court has the discretion to take foreign aspects into account such as foreign marital agreements, and will do so if circumstances show that this is fair. The law in respect of marital agreements applies equally to foreign marital agreements.
Invariably yes. It may be that you will live at some time during the marriage in your home country or in another country in which marital agreements are customary and binding. They may become binding in English law subsequently. We recommend that specialist independent legal advice is taken. Lawyers in the countries with which you have close connections or in which you may subsequently live should be involved in the drafting of the agreement. This will maximise the likelihood of it being binding or being strongly taken into account wherever you may be at the time of any subsequent divorce. This sort of agreement can take some time to finalise so put in hand preparation well in advance of the wedding.
This is binding on the English courts following a new EU law in June 2011. Even if England is dealing with the divorce, it has to transfer any issues of maintenance, interpreted as meaning 'needs', to the country agreed by the couple, even if that agreement was without legal advice or disclosure and circumstances may have changed significantly.
This applicable law clause would be treated by the English courts as if it was a jurisdiction clause and as an expression of a preference that any proceedings were dealt with in the country of the chosen applicable law.
The English Courts still prefer to see:
It is always a matter of judicial discretion, and each case is determined on its own facts. The existence of marital agreement is one factor to be considered in deciding which country is the best one for the divorce proceedings.¬ If the agreement will be upheld as binding in another country and this agreement is favourable to you, then that country may be better for a divorce than England despite this recent change in the law.
Pre-marriage and other marital contracts are not legally binding in England at present. However in October 2010 the UK Supreme Court significantly changed the status and weight given to marital including pre-marital agreements. They held that “the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.
That case concerned a German pre-marital agreement which made no provision for one spouse even though the other was very wealthy but which the English court upheld, although the court did make provision for the needs of the spouse in their capacity as a parent. The English courts will give weight to an agreement even if no separate independent advice or disclosure provided reasonable needs are satisfied.
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