International marriage contracts and property regimes — key considerations for couples

25 November 2024

3 min read

Family, Children & Relationships, Brabners Personal

In mainland Europe, it’s common for couples who plan to marry to enter into marriage contacts or agree particular property rules and regimes that will govern their marriage. As international family lawyers, we often advise clients on relationship breakdowns following international marriages.

Here, divorce law expert Amy Harris explains the key issues around marriage contracts that couples should be aware of.

Impact on financial remedy proceedings

In July 2024, Mr Justice Cusworth — sitting in the Family Court — heard the case of BI v EN ([2024] EWFC 200 (Fam)). This concerned the extent to which financial remedy proceedings between a husband and wife should be impacted by a French ‘Contrat de Mariage’.

The husband and wife had been married for over 20 years and had three children together. The couple were French and had elected to marry pursuant to the French ‘séparation de biens’ property regime. A separation of property regime typically means that each spouse will be the sole owner of their assets until separation or divorce.

The couple had assets of around £100m, which had accrued during the course of their relationship. The wife sought 50% of the assets upon divorce — claiming that she should be entitled to share the fruits of their marriage — while the husband believed that she should only receive around one-fifth of this (£20m) to meet her needs.

The effect of prenuptial agreements

Mr Justice Cusworth agreed with the husband and awarded the wife approximately £23m. His rationale was that the French ‘séparation de biens’ regime — set out in the couple's marriage contract — was both “valid” and an “unvitiated” prenuptial agreement.

The rationale for this was set out in the landmark case of Granatino v Radmacher, where the Supreme Court 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 the agreement".

This means that a couple entering into a prenuptial agreement should expect to be held to it — provided that the outcome of the agreement upon divorce is fair and the couple entered into the agreement freely with an understanding of its impact.

In this case, Mr Justice Cusworth was satisfied that the couple’s marriage contract was akin to a nuptial agreement and should therefore be upheld. Since where was no evidence to suggest that they didn’t intend for the agreement not to be binding, it was reasonable for the contract to stand — particularly in circumstances where it met the wife’s needs.

You may be held to international marriage agreements

This case confirms that any couples entering into international property regimes or marriage contracts abroad may be held to them in the same way that a prenuptial agreement should work if they subsequently divorce in England and Wales.

Couples with connections to England and Wales should therefore consider the international implications of any marriage contract or property regime at the outset of their marriage. For some people, it may also be advisable to enter into a prenup in England and Wales in addition to the international contract.