Postnuptial Agreements and International Marriages
If you and your husband or wife are from different countries there is an extra layer of complexity to your relationship and, if you decide to separate, to any divorce, parenting arrangements or financial settlement.
When you are one half of an international relationship it is sensible to think about entering a prenuptial agreement before you get married. If you did not do that then it still makes sense to think about signing a postnuptial agreement or an after-marriage agreement.
In this blog, our Family Law Solicitors explain why immigration applications and postnuptial agreements or reviews of prenuptial agreements often go hand in hand with one another.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi
Married overseas
If you got married overseas and you are planning to join your husband or wife in the UK on a Spouse Visa then it may also be the right time to consider if your existing prenuptial agreement needs reviewing or if you should sign a postnuptial agreement.
When you got married you may have thought that you would always live in your home country but you may be moving to the UK on:
- A Family Visa or Spouse Visa as you and your spouse have decided that the family should live in England
- A Dependant Visa as your spouse is coming to the UK on a Skilled Worker Visa or other Work Visa and you jointly plan to make the UK your long-term home by settling in the UK and eventually applying for Indefinite Leave to Remain and British citizenship
You may know what you would be entitled to if you got divorced in the country where you married. If you do know your legal rights in your home country it is dangerous to assume that you would have the same rights and expectations in the UK.
No one comes to the UK expecting their marriage to fail. Indeed, it is one of the Spouse Visa requirements that you must be in a genuine and subsisting relationship with your spouse to secure a Family Visa. However, getting legal advice on your family law rights and signing a postnuptial agreement doesn’t conflict with your being in a committed and loving relationship and one that you both hope will endure and flourish in the UK.
Signing a postnuptial agreement
If you are one half of an international family it is vital to understand the impact of signing a postnuptial agreement. If your marriage remains happy the agreement should give you security and peace of mind. If you sadly separate the agreement should give you a blueprint on how to split your assets by the agreement. An agreement can therefore reduce the time and emotional and financial costs involved in splitting up.
Are international postnuptial agreements legally enforceable?
Whether your international postnuptial agreement is legally enforceable depends on the country you are in and the ones that could have jurisdiction to sort out a divorce and financial settlement at the time of your separation.
In England, postnuptial agreements are not legally enforceable as a contract so your Family Law Solicitors cannot guarantee that the agreement will be binding in England. However, if a postnuptial agreement is prepared carefully by specialist Postnuptial Agreement Solicitors it stands a good chance of either the terms of the agreement being upheld or the English court saying that it should carry substantial weight when deciding on the financial settlement.
Whilst there is no 100% guarantee of your postnuptial agreement being 100% binding in England, depending on how you go about drafting the agreement, there is a strong likelihood that the existence of the agreement will help you reach a financial settlement without having to make a financial court application. If financial proceedings do need to be started, the court will potentially base its financial settlement on your postnuptial agreement but perhaps with some tweaks depending on your personal and financial circumstances at the time of your separation.
Legal advice and postnuptial agreements
In England, one of the factors that the court considers when deciding what weight to give to a postnuptial agreement is whether the husband and wife each took independent legal advice on the contents of the agreement. If you do so then it is more likely that the court will uphold or give weight to the agreement.
There is conflicting case law on whether it is essential to have taken legal advice for a postnuptial agreement to be binding on you so you don’t want to risk the prospect of expensive court proceedings to determine the weight to be placed on the agreement because you did not get expert legal advice on it.
Other factors that influence the weight given to a postnuptial agreement include whether there was financial disclosure before the agreement was signed. If there was no financial disclosure there is an argument to say the agreement was not fairly entered into as you could not judge if the agreement was reasonable without knowing the extent of your spouse’s assets.
All international family situations are complex and your needs and jurisdictional issues must be carefully considered. For example, if you are moving to the UK from the USA, a postnuptial agreement may be binding in the US State you live in and where you will still own property. You may want your postnuptial agreement to say that the US has jurisdiction or there may be other considerations if you plan to buy a family home in London and eventually secure British citizenship or dual nationality.
How can OTS Solicitors help?
OTS Solicitors specialise in family and immigration law so we have clients across the globe who need our help with advice on family and immigration law. Whether you need legal advice on a prenuptial agreement, postnuptial agreement or divorce jurisdiction our expert Family Law Solicitors can help you.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi
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