UK: Wealth Protection On Divorce In The Middle East: An Expatriate’s Guide To Ante-Nuptial Agreements - To Have And To Hold Or Not?

Last Updated: 24 May 2011
Article by Nicola Green

Most people living in the UK will know that the courts of England and Wales can make financial orders on divorce that can affect worldwide wealth (capital and income). Most will also know that such orders can have far reaching effect upon business and pension interests. What many expatriates living in the Gulf may not know, is that the divorce courts of England & Wales often retain jurisdiction over their divorce no matter how long they have lived in the Gulf. That does not mean to say the Gulf courts cannot also become involved, but that is another article in itself. In this article the writer considers what measures expatriates can take to protect their wealth from the divorce courts of England and Wales.

London has been called the divorce capital of the world. The divorce court has a wide discretion and in practice, that leads to uncertainty. So what can you do to try to protect yourself from a Judge making sweeping decisions about what should happen to your home, business and pension and introduce some certainty? The answer is ante-nuptial planning or, as it is more popularly known, a pre-nuptial agreement. The recent Supreme Court decision of Radmacher v Granatino (October 2010) has gone a long way to increase the effectiveness of these documents and the message is now simple. It is better to have one, than to not.

An ante-nuptial agreement sets out how a couple would wish to see their assets divided should they divorce. Unromantic? Possibly, but sensible. If you have an opportunity to try and have your say in how your hard earned wealth should be divided on divorce why not take it? An ante-nuptial agreement should be drafted by an experienced family lawyer. It should cover all points that would need to be resolved if a relationship breaks down including trying to protect inheritances from future claims (if relevant). It should enable the parties to review matters on significant life events such as the arrival of children, or one or the other party moving/giving up a job (particularly relevant to many expatriates). Too much 'crystal ball gazing' can render the document unenforceable, it is a question of getting the balance right at the drafting stage.

Contrary to the expectations of the popular press, it was never going to be possible for the court in the Radmacher case to rule that ante-nuptial agreements should, as a matter of law, always be binding. No contract can oust the courts jurisdiction to apply the factors in Section 25 of the Matrimonial Causes Act 1975 at the time of divorce but, the case did make clear that it is no longer contrary to public policy to allow couples to pre order their financial affairs in certain circumstances.

We now have an essential point of principle: "The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless the circumstances prevailing it would not be fair to hold the parties to their agreement". Some have termed this "the effective 'unless' test".

Radmacher involved a wealthy German heiress and a French banker who lived most of their married life in England. The ante-nuptial agreement stated neither would make a financial claim against the other in the event of divorce. The husband did not take independent legal advice before signing the agreement and proper financial information was not exchanged. On subsequent divorce, the husband wanted to make a financial claim against the wife. At the first court hearing, the agreement was found to not be a valid contract. The husband was awarded substantial sums of capital (some to be used to produce his future income). The Court of Appeal thought the agreement should have been given 'decisive weight' so changed/reduced the award (which remained substantial in this particular case).

The Supreme Court agreed with the Court of Appeal. Several key points emerged which can now be used to determine the effectiveness of ante-nuptial agreements:

  1. Parties must enter into the agreement of their own free will without undue influence or pressure.
  2. They must be aware of its implications.
  3. There must not be any lack of financial information material to each parties own decision and;
  4. Each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.

Following Radmacher, a couple with an ante-nuptial agreement which does not fall foul of the above paints and to which English law applies after the date of the Judgment, can expect an inference that they intend to be bound by it. Add to this the sensible extra safeguards of obtaining independent legal advice and making full and frank financial disclosure in advance of signing and it seems a reasonable agreement will be on safe ground.

So significant is the Radmacher case, in January, the Law Commission of England and Wales published a consultation paper which considers the arguments for and against statutory reform of the law in this area. We must await the findings but, until then, it must be better to have an ante-nuptial agreement than to not. If you are considering marriage, you are better placed than ever before to try to protect your wealth from the divorce courts by having a well drafted ante-nuptial agreement. Understand the implications of what you are both signing (proper independent legal advice with help), make full and frank financial disclosure and sign as far in advance of the wedding as possible. This advice applies in equal measure to those of us who have left England and Wales for sunnier climes. In fact if there was a way of protecting the hard earned wealth you have travelled a long way from home to build up during many summers of 50 degree heat why would you not take it?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions