Not necessarily. In England and Wales, the Courts still have the final say and are not bound by the terms of a pre-marital agreement made abroad. However, the existence of a pre-marital agreement made abroad will be one of many factors which the Courts will have to consider.
The Supreme Court (the highest family law Court in England and Wales) has held that Courts should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of the implications of the agreement, unless in the circumstances prevailing at the time of the divorce it would not be fair to hold the parties to their agreement. The Court has held that, certainly for pre-marital agreements entered into after 20 October 2010 (when an important decision relating to pre-marital agreements was handed down by the Supreme Court) that a nuptial agreement that is freely entered into by each party with a full appreciation of the implications of the agreement, unless in the circumstances prevailing at the time of the divorce it would not be fair to hold the parties to their agreement.
This means that a pre-marital agreement freely entered into after 20 October 2010 will in effect be presumed by the Courts in England and Wales to be intended to be binding and the parties are likely to be held to it, if their needs and those of any children that they have are met.
However, not every pre-marital agreement will be upheld, nor are they automatically binding under English law.
Other factors the Court will take into account when considering a pre-marital agreement are:
- Did each of the parties have independent legal advice before the agreement was signed?
- Did each party make full disclosure of all material financial circumstances and other relevant matters at the time the agreement was signed?
- Did either party sign the agreement under undue pressure?
- Do the terms of the agreement meet each of the parties’ and their children’s needs.