Will my prenup be valid when I move to England?


Prenups are often familiar territory to many HNW and UHNW international couples. Still, careful consideration must take place pre-arrival and once moved, as prenups aren’t automatically enforceable in the English courts.

Once a couple becomes habitually resident in England, any future divorce and financial settlement is likely to be determined according to the law of England and Wales. This means that a prenup is only likely be upheld if it meets certain conditions, including:

  • the prenup has been entered into freely;
  • each party has taken independent legal advice;
  • there has been material financial disclosure by both parties; and
  • the agreement is fair – crucially this is determined at the point of the divorce, rather than at the time the agreement is signed.

It is important that any existing overseas prenup is reviewed to ensure the above criteria are fulfilled and that it takes account of changed circumstances following the relocation.

For those who don’t have a nuptial agreement in place, investing in property in the UK can act as an ideal segue to negotiate a postnup.

How can cohabiting couples protect their property when moving to England?

It’s often assumed that a couple that cohabitates for an extended period of time will have the same rights as a married couple if they separate. However, in England, there’s no such thing as common law marriage. This doesn’t mean that one party can’t make a claim against the other concerning the property, and in fact, there are several legal means by which they can do this, especially when children are involved.

How does a cohabitation agreement work for international couples?

For international cohabiting couples acquiring property, we always recommend a cohabitation agreement, as it can protect the individuals from any issues should the relationship end and mitigate any long legal battles. An agreement allows both parties to regulate the terms of their cohabitation and provides clarity throughout the relationship and if it breaks down.

An agreement incorporates or is accompanied by a declaration of trust in relation to property, confirming the parties’ respective beneficial interests. It can also help couples to navigate resolution around other issues such as how household expenses are split, what happens if one party wishes to sell the party, but the other doesn’t, financial provision during and after cohabitation as well as living arrangements and financial support for any children.

In our experience, the security and clarity through prenups, postnups or cohabitation agreements offer great relief to couples if the relationship ends in the future.

This article deals with the position in England and specialist advice ought to be taken as necessary regarding the position in Scotland.

By Simon Blain, partner, family Forsters LLP


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