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Family Law 2017 1St Edition w ICLG The International Comparative Legal Guide to: Family Law 2017 1st Edition A practical cross-border insight into family law Published by Global Legal Group, with contributions from: Amorós Arbáizar Kingsley Napley LLP Attorney Zharov’s Team Laura Dale & Associates, P.C. Boulby Weinberg LLP Lebenberg Advokatbyrå AB Chia Wong LLP Lloyd Platt & Co Solicitors Cohen Rabin Stine Schumann LLP Mangan & Company Solicitors Delerue Sharma Shang & Co. Diane Sussman SKO Family Law Specialists Etude de Me Anne Reiser The International Academy of Family Lawyers FSD Law Group Inc. Villard Cornec & Partners Gama e Gerace – Advogados Associados Withers Haraguchi International Law Office YTT Law Office The International Comparative Legal Guide to: Family Law 2017 General Chapters: 1 International Marital Agreements – the Approach by the English Court on Divorce – Charlotte Bradley, Kingsley Napley LLP 1 2 The Practice of International Family Law – William Longrigg & Nancy Zalusky Berg, The International Academy of Family Lawyers 6 Contributing Editor Charlotte Bradley, Kingsley 3 It’s Time For No Fault Divorce – Vanessa Lloyd Platt, Lloyd Platt & Co Solicitors 12 Napley LLP Sales Director Florjan Osmani Country Question and Answer Chapters: Account Directors Oliver Smith, Rory Smith 4 Brazil Gama e Gerace – Advogados Associados: Marco Aurelio Gerace & Sales Support Manager Gustavo Antonio Silva 16 Paul Mochalski Editor 5 Canada – Ontario Boulby Weinberg LLP: Sarah Boulby & Oren Weinberg 24 Tom McDermott Senior Editor 6 Canada – Quebec FSD Law Group Inc.: Pierre-Hugues Fortin & Marie-Hélène Saad 30 Rachel Williams Chief Operating Officer 7 England & Wales Kingsley Napley LLP: Claire Wood & Charlotte Bradley 36 Dror Levy Group Consulting Editor 8 France Diane Sussman: Diane Sussman 44 Alan Falach Group Publisher Richard Firth 9 Germany Delerue Sharma: Stefanie Sharma 51 Published by Global Legal Group Ltd. 10 Hong Kong Withers: Sharon Ser & Philippa Hewitt 55 59 Tanner Street London SE1 3PL, UK Tel: +44 20 7367 0720 11 Ireland Mangan & Company Solicitors: Avril Mangan 64 Fax: +44 20 7407 5255 Email: [email protected] URL: www.glgroup.co.uk 12 Japan Haraguchi International Law Office: Kaoru Haraguchi 72 GLG Cover Design F&F Studio Design 13 Malaysia Shang & Co.: Fion Wong Sook Ling & Chris Chin Shang Yoon 78 GLG Cover Image Source iStockphoto 14 Russia Villard Cornec & Partners and Attorney Zharov’s Team: Printed by Julie Losson & Anton Zharov 84 Ashford Colour Press Ltd January 2017 15 Scotland SKO Family Law Specialists: John West & Rachael Kelsey 92 Copyright © 2017 Global Legal Group Ltd. 16 Singapore Chia Wong LLP: Wong Kai Yun 100 All rights reserved No photocopying 17 Spain Amorós Arbáizar: Amparo Arbáizar 108 ISBN 978-1-911367-32-1 ISSN 2398-5615 18 Sweden Lebenberg Advokatbyrå AB: Torgny Lebenberg & Kristin Håkansson 115 Strategic Partners 19 Switzerland Etude de Me Anne Reiser: Anne Reiser 121 20 Turkey YTT Law Office: Mert Yalcin 127 21 USA – New York Cohen Rabin Stine Schumann LLP: Gretchen Beall Schumann, Esq. 133 22 USA – Texas Laura Dale & Associates, P.C.: Laura D. Dale & Ashley V. Tomlinson 139 Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.CO.UK Chapter 1 International Marital Agreements – the Approach by the English Court on Divorce Kingsley Napley LLP Charlotte Bradley One of the biggest recent developments in family law in England namely the needs of any children and the parties, and the concept and Wales1 has been the rising demand for marital agreements. of sharing equally the assets built up during the marriage. The extent to which the court allows the exclusion of these principles when considering the validity of a marital agreement will vary in Introduction each case. However, a consideration of the couple’s needs and, in particular, the needs of any children will always be at the forefront With increased globalisation and continued migration to the UK, of a judge’s mind when the agreement is considered, as will the st and following Supreme Court decisions in the early 21 century intentions behind the agreement (particularly if it is a non-English which have introduced the principle of equality into financial agreement which does not seek to address all the financial provision divorce cases, the request for pre-nuptial agreements has risen to be made in the event of a future divorce). sharply. The greatest demand for pre- and post-nuptial agreements appears to still be from those individuals whereby one or both of the couple have substantial international connections. But what about Approach of the Court to Foreign Marital those couples who already have a marital agreement, prepared in Agreements Prior to Miller and McFarlane another jurisdiction, but who are divorcing in England? How will an English judge treat the agreement? Until the House of Lords3 cases of White in 2001 and Miller and Radmacher v Granatino [2010] UKSC 42 is the first Supreme Court McFarlane in 2006, there was a dearth of case law dealing with case specifically dealing with the enforceability of agreements. The marital agreements and those limited reported cases tended to be case has cemented the English court’s already developing approach forum conveniens (stay of proceedings) cases, where one party to uphold domestic and foreign agreements, and has led many more relied on the existence of the foreign agreement to encourage the clients to seek agreements as well as encouraging the demand for English court to decline the English divorce petition in favour of the statutory change (e.g. see the Law Commission’s 2014 report on foreign divorce proceedings, rather than cases where the court was Matrimonial Property Needs and Agreements at: https://www.gov. being asked to uphold the terms of the agreement. uk/government/publications/matrimonial-property-needs-and- So, in S v S (Divorce: Staying proceedings) [1997] 2 FLR 100, a case agreements). Since Radmacher, English case law in relation to the involving a New York pre-marital agreement, Wilson J concluded enforcement of foreign marriage agreements has developed rapidly that the agreement, with its substantial financial provisions and as set out below. provision in relation to forum, was significant. Both parties had For those readers who do not practise English family law, it is obtained independent advice and the terms had been negotiated worth noting that none of the factors set out in Section 25 of the between their respective New York attorneys. Wilson J ordered the Matrimonial Causes Act 1973, to which the court must have regard stay of the English proceedings. when considering the appropriate financial orders2, include the In C v C (Divorce: Stay of English Proceedings) [2001] 1 FLR 624, a requirement to consider any marital agreement. The agreement will case involving French nationals (shortly before the implementation be considered as part of the circumstances of the case (s 25 (1)) or as of the Brussels II regulation which replaced forum conveniens with conduct (s 25 (2) (g)) and the extent to which any agreement will be lis pendens for EU nationals), the judge placed great weight on given weight will depend on the facts of the case. The jurisdiction the ‘separation de biens’ pre-marriage contract entered into by the of the English court to order financial provision on divorce cannot French couple, when staying the wife’s English divorce petition in be ousted by the parties’ agreement. And, as a country which favour of the French divorce proceedings. practises family law on the basis of forum without applying foreign Contrast the court’s approach in these cases to the judgment of F law (unlike many of its European neighbours), once jurisdiction has v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45, where been secured, the court will apply English law (although, as can be jurisdiction in the English court was secured and it was being seen from the cases below, in the exercise of its discretion, the court asked to consider the weight of a German pre-nuptial contract in may take into account the parties’ connections with another country determining the wife’s financial claims. when considering the appropriate financial orders, particularly if there is a foreign marital agreement). Thorpe J refused to allow any expert evidence from Germany declaring ‘in this jurisdiction they [pre-nuptial agreements] must be When considering the effects of the pre- or post-marital agreement, of very limited significance. The rights and responsibilities of those executed in England and Wales or elsewhere in the world, the court whose financial affairs are regulated by statute cannot be much will not ignore the established principles set out in English case law, influenced by contractual terms which were devised for the control ICLG TO: FAMILY LAW 2017 WWW.ICLG.CO.UK 1 © Published and reproduced with kind permission by Global Legal Group Ltd, London Kingsley Napley LLP International Marital Agreements in the English Court and limitation of standards that are intended to be of universal The facts of Radmacher are unusual and are worth setting out. The application throughout our society’ [page 66]. Compare this approach case involved a wealthy German wife with a French husband with to that of the Supreme Court in Radmacher 15 years later. two children born in England.
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