Will my German prenuptial agreement be recognised in England?

A couple may enter into an Ehevertrag (German prenuptial agreement) expecting it to provide certainty about the financial consequences of a future divorce. But what happens if the couple later move to England and their marriage breaks down here?

This is a question we are increasingly asked by internationally mobile couples. Many families divide their lives between countries, whether for work, business, family reasons or simply changing circumstances. It is not uncommon for a couple to marry in Germany, sign a German nuptial agreement, and later find themselves living in England when divorce proceedings begin.

While a German prenuptial agreement may be an important factor, an English court will not automatically treat it in the same way as a German court would.

International couples can face unexpected issues

People are often surprised to discover that family law outcomes can differ significantly from one country to another.

A couple may have put arrangements in place years earlier, signed documents before a notary and believed that their financial position was settled. However, moving to another country can introduce a different legal framework and a different approach to divorce.

For that reason, anyone entering into a prenuptial agreement with an international element should consider not only how the agreement operates where it was signed, but also what could happen if they later live elsewhere.

Many German nationals are surprised to discover that a valid German Ehevertrag does not automatically bind an English court.

In Germany, a properly executed prenuptial agreement will often provide a high degree of certainty about the financial consequences of divorce. While there are safeguards and circumstances in which provisions can be challenged, nuptial agreements are generally afforded considerable legal weight.

England takes a different approach.

Are prenuptial agreements binding in England?

Unlike some jurisdictions, England does not treat a prenuptial agreement as automatically binding.

The English court retains jurisdiction to determine financial claims on divorce and is not prevented from doing so simply because the couple signed an agreement before marriage. That does not mean that prenuptial agreements are ignored. Far from it. Over recent years, the courts have become increasingly willing to uphold properly prepared agreements.

When deciding how much weight should be given to a prenuptial agreement, the court will consider factors such as whether:

• both parties entered into the agreement freely

• either party was subjected to undue pressure

• both parties understood the implications of what they were signing

• there was sufficient awareness of the other party's financial position

• the parties had the opportunity to obtain appropriate legal advice, and

• it remains fair to hold the parties to the agreement at the time of the divorce

The ultimate question is whether giving effect to the agreement would be fair in all the circumstances of the case.

What does "fair" mean in practice?

Fairness is a key concept in English family law.

As a result, the court may be willing to uphold an agreement which protects certain assets while still ensuring that both spouses’ needs are met. For example, imagine one person enters the marriage with substantial inherited wealth or shares in a long-established family business. A carefully drafted prenuptial agreement might state that these assets should remain protected in the event of divorce.

If both spouses understood and accepted those arrangements when they married, an English court may give significant weight to the agreement. However, the outcome may be different if circumstances have changed dramatically during the marriage.

Suppose the couple have been married for many years, have children, and one spouse has become financially dependent on the other. If applying the agreement strictly would leave that person unable to meet their housing or income needs, the court may decide that it would be unfair to hold them to every aspect of the original bargain.

The court's ability to take account of changing circumstances is one of the reasons why the final outcome may not always match what the agreement originally envisaged.

A landmark Anglo-German case

The issue was considered in the well-known case of Radmacher v Granatino.

Before their marriage, German heiress Katrin Radmacher and her future husband signed a prenuptial agreement in Germany. The agreement was legally effective under German law and provided that neither party would make financial claims against the other's assets in the event of divorce.

When the marriage later broke down and financial proceedings were commenced in England, the husband argued that the English court should not simply treat the agreement as determinative.

The case ultimately reached the Supreme Court, which held that courts should generally give effect to a nuptial agreement that has been freely entered into with a full appreciation of its implications, unless it would be unfair to do so.

The decision marked a significant shift in the English approach to prenuptial agreements. However, it did not make them automatically binding. The courts retained their ultimate discretion to ensure a fair outcome.

The case remains a useful reminder that a prenuptial agreement which is legally effective in Germany will not necessarily produce the same outcome if the divorce takes place in England.

Does it matter that the agreement is German?

Yes, potentially.

The fact that the agreement was entered into in Germany, and the legal status afforded to it under German law, will form part of the background that an English court considers.

For example, the court is likely to take into account:

• the circumstances in which the Ehevertrag was signed

• the extent to which it was legally effective in Germany

• the parties' intentions at the time, and

• their understanding of the consequences of entering into the agreement.

A German agreement that was prepared in accordance with German legal requirements may therefore carry considerable weight.

However, this does not mean that an agreement which would be fully effective in Germany will automatically produce exactly the same financial outcome following an English divorce.

Instead, it will be one factor, albeit sometimes a very important one, within the broader English legal framework.

What should you do?

Couples with connections to more than one country should seek tailored advice as early as possible.

This is particularly important where there are significant assets, business interests, inherited wealth or children involved.

Taking advice in both jurisdictions before signing a prenuptial agreement can help identify potential cross-border issues from the outset. It may also be sensible to review existing arrangements if a family relocates internationally after marriage.

Many couples understandably focus on tax, immigration or employment consequences when moving country. Family law implications can sometimes be overlooked until difficulties arise.

Seeking advice early can make a difference

An international divorce often involves questions that do not arise in purely domestic cases, including jurisdiction, the treatment of overseas assets and the impact of agreements signed abroad.

A German prenuptial agreement may provide significant protection and may ultimately carry substantial weight in an English divorce. However, whether it will be upheld, and to what extent, will depend on the particular facts of the case and the English court's assessment of fairness.

Our international family team advises clients on prenuptial and postnuptial agreements, international divorce and cross-border family law issues involving England, Germany and many other jurisdictions. Whether you are considering entering into an Ehevertrag or are concerned about the effect of an existing agreement following a move to England, we can help you understand your options.

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