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those who might want to enter into a pre-nup, and those who had already entered into one. A clear legal precedent was set when Ms Radmacher took Mr Granatino to the Supreme Court, England’s highest court. The Supreme Court decided that prenups, while not formally binding in England and Wales, are persuasive and are viewed as decisive if they are entered into properly and follow the guidance provided in Mrs Radmacher and Mr Granatino’s case. The three main steps for a prenup to have the possible chance to be upheld by the court are: 1. The agreement must be fair. A pre-nup which allowed one party to keep everything, leaving the other party with nothing would not be upheld by the court. 2. Both parties should have received independent legal advice before entering into the pre-nup. Each person needs to see a separate lawyer as the same lawyer cannot take responsibility for advising both parties because their interests will be different. 3. The time between the wedding and entering into the pre-nup is also crucial. A pre-nup should be entered into at least 21 days before the wedding to avoid a situation where the document is presented at the last minute.

Agree Jurisdiction

Agree jurisdiction for future legal proceedings: in addition to the division of the finances when a relationship breaks down, a crucial

aspect for people living abroad is to agree on the jurisdiction in which any future legal proceedings would take place. In Mr Granatino and Ms Radmacher’s case, the parties had entered into a pre-nup in Germany but subsequently moved to London where they married. Although the pre-nup was legally binding in Germany, the agreement was open to being challenged in the English Courts as the divorce proceedings were started in London. A recent Law Commission report strongly supported the concept of couples having a binding agreement provided certain criteria had been met so that the agreement could be considered a “qualifying nuptial agreement”. This greater certainty is likely to boost the popularity of pre-nups in England.

Consider a post-nup

If a relocating couple have entered into a pre-nup in the US, they may need a post-nuptial agreement to ensure that their agreement agrees with the Supreme Court’s guidance in Ms Radmacher and Mr Granatino’s case. The legal approach to pre-nups not only differs between states of the US but may also be different to that of the English Courts.

The importance of jurisdiction

Relocation can, unfortunately, place pressures and strains on relationships and family life. If a couple is contemplating separation, they should be aware that the English Courts may have jurisdiction to deal with a divorce between an American couple, even if they are UK non-domiciled, retain property in the US and have been in the UK for a relatively short period of time. The issue of jurisdiction is important because the approach of the English Courts to resolving financial claims between spouses may be very different to the approach of the US Courts. England has a reputation for being the “divorce capital of the world” as maintenance payments awarded to spouses are considered to be more generous than in other jurisdictions. The approach to issues such as assets acquired prior to the marriage or assets inherited or gifted during the marriage may also be different in England. As such, a spouse who has been here for only a short period of time and is on the receiving end of divorce proceedings may consider that it would be unfair for the English Courts to hear their divorce and financial claims.

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The American September 2014 Issue 736  

The American has been published for Americans in Britain since 1976. It's also for Brits who like American culture.

The American September 2014 Issue 736  

The American has been published for Americans in Britain since 1976. It's also for Brits who like American culture.

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