Prenups for international couples

Why an ordinary English prenup may not be enough

England & Wales has no "matrimonial property regime" — the court divides assets on divorce at its discretion. Most of the rest of the world does. In Spain, France, Italy, Portugal, Germany, the Netherlands, Brazil and much of Latin America, a couple is automatically in a regime (community of property, separation of property, or a deferred community) unless they opt out by a formal notarial agreement. A foreign notary, land registry or court may not recognise an English deed signed in a solicitor's office as opting out of anything.

The reverse is also true: a foreign marital agreement brought to an English divorce is judged by the Radmacher test, and one made without disclosure or advice may carry less weight here than it would at home.

What an international prenup adds

• A choice-of-law clause stating which country's law the parties intend to govern their property, and a statement of the intended regime (usually separation of property).
• Jurisdiction wording — which courts the parties intend to use — while recognising that an English court will always keep its own discretion.
• Treatment of foreign assets: property, bank accounts, pensions and businesses abroad, described in the disclosure schedules and dealt with expressly.
• A bilingual text where the other country requires its own language, signed as one document.
• Notarial execution and apostille so that the agreement is a recognisable notarial act abroad. How notarisation works.
• Coordination with a lawyer in the other country where local law will decide how the agreement is applied.

Common situations

Where we say no. If the other country's law will plainly govern the outcome and an English agreement adds nothing, we will tell you to instruct a lawyer there instead — or we will draft to sit alongside their document. We would rather you have the right agreement than one more piece of paper.