Prenuptial agreements have been a source of controversy in recent years, causing confusion in courts across Europe and leading both Labour and the Conservatives to call for reforms to divorce law. Despite the European Commission’s attempts to harmonise divorce law across Europe, cultural and legal differences have been obstructive and as The Economist noted in 2010, many doubt “whether it is possible to sign a prenuptial agreement that would be globally recognisable, let alone enforceable”.
The disparity of European divorce law was highlighted through a recent dispute in England. The couple in question had entered into a European pre-marriage contract, a similar but non-identical form of prenuptial agreement in France before relocating to England. The wife later opened divorce proceedings in England where the Court refused to consider how the case would be conducted in France. Although the terms of the pre-marriage agreement were taken into account, the woman nevertheless received a far larger award than she would have been in France.
This case reflects an English judicial tendency to overrule clauses in the pre-marital agreements of other states, if deemed unfair by English standards. Indeed, in the UK, marriage is seen as an institution rather than a contract, and this cultural construal shapes English divorce law. English courts judge the case on case-specific facts, making a ruling based on fairness.
It appears, therefore, although the courts in England and Wales are very gradually moving towards the European position in accepting the validity of prenuptial agreements, we still have a long way to go.