Prenuptial and postnuptial agreements

Deciding to get married is an exciting time in your life, and a prenuptial agreement may be the last thing on your mind. But more and more couples are deciding on this route to bring them peace of mind should the unthinkable happen.

Whether you decided to have an agreement or it is at the suggestion of family members, trustees or fellow shareholders, a pre-nuptial agreement (as with pre-civil partnership and post-nuptial agreements) can save a lot of stress, dispute and future legal costs should the relationship break down. We have enormous experience in the drafting and negotiation of these agreements, whether they are multi-jurisdictional in scope or relate just to one country.

Although these agreements are not yet legally binding in England, a Supreme Court ruling in 2010 saw the introduction of a presumption that family courts should hold spouses to a nuptial agreement (whether made before or after the marriage) if both parties understood the implications of entering into the agreement. The legal position is similar in Hong Kong.

We advise either the financially stronger party, or the intended spouse or civil partner, and we take great care to tailor our approach to individual circumstances. We have created pre-nups and post-nups for a range of different people from entrepreneurs thinking about their business interests, beneficiaries of family trusts and shareholders in family businesses, to high-profile celebrities wishing to protect their reputations. As with all our work, total discretion is paramount.

Where partners come from different countries, or own property or have other financial interests outside England, we work where appropriate with leading family lawyers in other jurisdictions known to us through our membership of the International Academy of Family Lawyers, and, as needs be, with our colleagues from other teams within Withers (for example where advice is required on tax and trusts, property or business matters).

Besides our enormous experience in the drafting of prenuptial agreements, we have also been involved in cases where such agreements have been tested in court. For example, the influential case of Crossley (2007) where the court decided in favor of our client in holding that the prenup was the magnetic factor in the case; and Z v Z (2011) in which the court upheld our client’s claim to give credence to a French premarital separate property agreement in limiting the divorce award to the other spouse’s needs rather than ordering an equal split of the assets. Brett Frankle acted for the husband in that case which involved two French citizens living in London.

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12 December 2017 - Video

Prenups: do they work and do you need one?


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20 years as a top ranked firm for family/matrimonial (1997-2017)

Top ranked firm for family/matrimonial

Top tier firm for family (2002-2016)

Winner of family/matrimonial law firm of the year

UK top family law firm

Market leader in family and divorce law - Hong Kong (2015-2018)

Talking about prenups


How can you best protect your financial assets, and your relationship? How do you approach a prenup discussion with your partner?

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Track record

Recognition of prenuptial agreements in Hong Kong

Sharon Ser took the lead in the ground breaking case of SPH v SA which went to the Hong Kong Court of Final Appeal concerning prenuptial and separation agreements, which resulted in the recognition that prenuptial agreements should be enforceable in Hong Kong.

Use of European pre and postnuptial agreements clarified in the Hong Kong courts.

A landmark divorce case in Hong Kong involved German pre and postnuptial agreements. The case confirmed that the principles set out in the English Supreme Court case of Radmacher, in respect of prenuptial agreements, would be an appropriate precedent for the Hong Kong courts, and that, if the parties fully understood the implications, they would most likely be bound to their agreements. <br />

The US-born son of a UK businessman

When he became engaged to a Swiss citizen, the son of a high-profile UK businessman asked us to help him obtain a British Passport and expatriate from the US. We were also asked to draft a prenuptial agreement. Timing was of the essence but as a global, full-service firm we created a team of immigration, family and private client lawyers to meet tight deadlines.

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