Raleys Solicitors

English divorce law is renowned for favouring the poorer party, which is usually the woman, in divorce proceedings and as such often overrules clauses in pre-nuptial agreements if they look unfair. This is particularly prevalent in cases of wealthy foreigners whose wives start divorce proceedings in England.

Foreign pre-nuptial agreements are often overruled in English courts because of the emphasis they place on independent legal advice. Before either party signs a pre-nuptial agreement, English courts would expect both partners to have had their own independent legal advice, whereas in many other countries this is not necessarily the case. Furthermore, English courts tend to view marriage as an institution and will consider fairness and the needs of either spouse as a priority. Hence many rich husbands find themselves paying a good deal to support an ex-wife, particularly if she has care of the children. English courts are also inclined to view homemaking activities as having boosted a man’s earning power and rule that the ex-wife is entitled to a lifelong share in his earnings. For these reasons any pre-nuptial agreement that totally disregards these factors is likely to carry little or no weight in England.

One case, currently passing through the Supreme Court looks set to be a landmark ruling in terms of foreign pre-nuptial agreements and their importance and weight in divorces in England. Divorce lawyers are watching with interest to see the outcome of a case involving a wealthy German heiress whose pre-nuptial agreement with her French former husband stated that in the event of divorce he would be entitled to nothing from her. When they divorced in England in 2007 an English court disregarded the pre-nuptial agreement and awarded him almost £6m. However, the heiress went on to appeal, citing the agreement and had his payment reduced to £1m. Now the settlement is once again being challenged by the former husband, who argues he didn’t receive the proper legal advice and wasn’t aware of exactly how rich she was before signing.

There is little doubt that pre-nuptial agreements are going to take on more importance in the coming years, but the doubt remains over how much importance they should receive. Factors such as legal advice and financial disclosure are considered vital by the English courts in order to make sure an agreement will stand up in court, but there will still be the potential for agreements considered unfair to be disregarded.