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, Partner in our Family & Relationships department, 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.
Handed down in July 2024, the case examines the legal weight given to a foreign marital agreement within English financial remedy proceedings. It raises important questions about the extent to which English courts will respect the terms of such agreements, particularly when they originate from jurisdictions with different legal frameworks.
In England and Wales, unlike many European countries, there is no automatic property regime governing marital assets. Instead, financial settlements on divorce are determined under the discretionary framework of the Matrimonial Causes Act 1973. Since the landmark Radmacher v Granatino decision in 2010, English courts have increasingly recognised the autonomy of couples to enter into nuptial agreements, provided certain safeguards are met, including full financial disclosure, independent legal advice, and no evidence of duress.
The BI v EN case reinforces the principle that while foreign marriage contracts are not automatically binding in England, they can carry significant weight if they meet the criteria established in Radmacher. The judgment reflects the courts’ continued balancing act between respecting individual autonomy and ensuring fairness in financial outcomes. For HNW individuals with international ties, the case underscores the importance of careful legal planning and cross-border advice when entering into marital agreements.
Read the full article on the IFLJ website [subscription required].