Have Prenup, Will Travel: Why England’s Law on Marital Agreements Has Attracted Forum Shoppers and How the Courts Can Fight Back

Authors

Karina VanHouten

First Page

807

Abstract

This Note examines the English judiciary’s reluctance to fully accept marital agreements, and the disruptive effect this has in the global legal arena. In our increasingly international world, the fundamental events of family life—marriage, divorce, and death—often no longer occur in the same jurisdiction. In recent years, prospective divorcées from around the globe have flocked to England to take advantage of the country’s matrimonial law, which generally favors the party seeking to invalidate or minimize a marital agreement. This forum-shopping phenomenon is problematic because English courts regularly disregard foreign marital agreements that would be valid and binding in other jurisdictions, instead leaving judges to exercise wide discretion over financial settlements upon divorce, effectively substituting their own judgments for terms previously agreed upon between prospective spouses. The English courts have attempted to reform their treatment of marital agreements, but legislative action is necessary to comprehensively address this issue. This Note begins by examining the English statutory matrimonial law underlying the courts’ approach, followed by an analysis of attempted reform by the judiciary and the ultimate shortcomings of the judicial approach. Finally, this Note proposes that until Parliament takes definitive action to reform the statutory law on marital agreements, courts should subject foreign marital agreements to a conflict-of-laws inquiry. This interim solution would enable courts to determine the proper law to apply when faced with an international marital agreement, thus giving meaning to validly executed foreign marital agreements and eliminating the incentive for prospective divorcées to forum shop their divorce to an English court.

Recommended Citation

Karina VanHouten, Have Prenup, Will Travel: Why England’s Law on Marital Agreements Has Attracted Forum Shoppers and How the Courts Can Fight Back, 42 Brook. J. Int'l L. 807 (2018).
Available at: https://brooklynworks.brooklaw.edu/bjil/vol42/iss2/5