ENGLAND and WALES
In England and Wales, the courts have traditionally given little weight to a prenuptial agreement, and have viewed the enforcement of prenuptial agreements as being against public policy. Thus, in F v. F (Ancillary Relief: Substantial Assets), (1995) 2 F.L.R. 45, Thorpe J. stated that a prenuptial agreement must be "of very little significance" since the distribution of assets must take place in accordance with statutory formula and "cannot be much influenced by contractual terms." Likewise, in N v. N (Jurisdiction: Pre-Nuptial Agreement) (1999) 2 FLR 745 the court refused to enforce even a portion of a prenuptial agreement in which the husband had agreed that, in the event of a divorce, he would take all steps religiously necessary to allow his wife to obtain a "get," allowing her to remarry under Jewish law. The court held that "even if one divides up the antenuptial agreement in this case, and looks at the individual clauses separately, one cannot, in my judgment avoid the fundamental proposition that each is part of an agreement entered into before marriage to regulate the parties' affairs in the event of divorce. The public policy argument, therefore, continues to apply." [754f].
However, the traditional view is shifting. The English courts appear to be now saying that a prenuptial agreement can be a material consideration when considering what adjustments to make to a divorcing couple's financial circumstances on divorce. In M v. M (Pre-nuptial Agreement) (2002) 1 FLR 654, the court was prepared to take the couple's prenuptial agreement into account as a factor tending to reduce the final award to the wife. Most significantly, in K v. K (2003) 1 FLR 120, the court held that the wife was bound to terms concerning capital distribution that she had agreed to in a prenuptial agreement she had signed. The court set forth the factors to be considered in determining the weight to attach to a prenuptial agreement. The decision indicates that, where there is no duress, where the parties have received independent legal advice, where the relevant facts have been disclosed and the agreement is not manifestly unfair, English courts are increasingly likely to uphold the terms of a prenuptial agreement.
English courts might enforce foreign prenuptial agreements if the applicable law is that of a jurisdiction that enforces marital agreements. In general, if the married parties are domiciled in different jurisdictions, English law provides that the matrimonial domicile (which, even today, usually follows the domicile of the husband) determines the law applicable to the couple’s movable property. Therefore, if the husband is domiciled in a jurisdiction that would enforce a prenuptial agreement, the terms of the agreement should be applicable to all of their property except for real estate.
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