Richard Kershaw discusses foreign marriage contracts in English law in the IFLJ
Richard’s article was published in the International Family Law Journal (IFLJ), December 2024, and can be seen here.
Richard Kershaw explores the recent judgment in BI v EN [2024], which addresses how the High Court in England and Wales handles foreign marriage contracts in high net worth (HNW) divorce cases.
The approach of the English courts to foreign marriage contracts – An analysis of BI v EN
The judgment in BI v EN [2024] EWFC 200 (Fam) is, in jurisprudential terms, hot off the press, being handed down on 4 July 2024. It tackles head on the question of how the High Court in England and Wales deals with a foreign marriage contract in the context of a HNW financial remedy claim on divorce.
Marital agreements in England
Unlike much of continental Europe, England does not operate a property regime either during or at the end of a marriage; rather, a divorcing couples’ assets (and liabilities) will be divided according to the discretionary regime set out in the Matrimonial Causes Act 1973.
Since 2010 and the Supreme Court’s judgment in Radmacher v Granatino [2010] UKSC 42, the courts have recognised a couple’s autonomy to enter a nuptial agreement provided certain safeguards are met. In summary these require the absence of duress, the provision of sufficient financial disclosure to allow an informed view of the effect of the terms of the agreement, independent legal advice for each party and execution at least 21 days before the wedding.
Read the full article here [subscription required]: The approach of the English courts to foreign marriage contracts – An analysis of BI v EN
