Many foreign nationals live and work in the UK, and until recently there was considerable doubt about the effectiveness of foreign pre-nups in England.
In July 2009, the English Court of Appeal severely limited the claims of a French national on divorce as a result of pre-nup he had entered into in Germany.
In France and Germany pre-nups are generally binding and therefore the Court of Appeal found in the case of Radmacher v Granatino that it would be unfair to ignore the terms of that agreement, even though there had not been proper disclosure and both parties had not been independently advised.
The case was referred to the Supreme Court and was heard in March 2010. English family lawyers are now awaiting the outcome of that decision and the implications for pre-nups both foreign and domestic.
Even if the Court of Appeal decision is overturned, enforceable foreign pre-nups are only a few months away in family law cases.
In June 2011, a new maintenance regulation from the European Union will come into force in the UK and the rest of Europe. This means that if the parties have entered into a pre-nup in another European country which prevents a maintenance claim then this will be binding on the English Courts.
If a foreign pre-nup can be binding in England, how can the English courts justify not recognising agreements between UK nationals?
The potential impact of this regulation cannot be underestimated and will severely limit the discretion of the English courts which are known as being amongst the most generous in the world for the financially weaker party.