Introduction

Since the landmark decision in Radmacher v Granatino [2010] UKSC 42, [2011] 1 AC 534, English law has recognised the legitimacy of pre-nuptial agreements. As family life becomes increasingly international, the courts regularly encounter a wide variety of agreements, including those signed abroad.

The most common form of foreign agreement is the election of a foreign matrimonial property regime, such as the French séparation de biens or the Italian separazione dei beni. These typically operate to exclude any sharing of assets during marriage and on divorce.

Should such an agreement be treated with the same weight as a bespoke English pre-nuptial agreement, negotiated with financial disclosure and specialist independent legal advice? The answer is less straightforward than it may seem.

The legal framework: Radmacher and the years that followed

Historically, pre-nuptial agreements were contrary to public policy, since marriage involved a duty to live together (Cocksedge v Cocksedge (1844) 14 Sim 244). However, by the late 20th century, courts began giving them increasing weight, as seen in Crossley v Crossley [2007] EWCA Civ 1491, [2008] 1 FLR 1467, where the wealthy parties had independent legal advice, and MacLeod v MacLeod [2008] UKPC 64, [2010] 1 AC 298, albeit a postnuptial agreement in that case.

The turning point came in Radmacher v Granatino. This marked a seismic shift in the English courts’ approach to nuptial agreements. The Supreme Court held that, a pre-nuptial agreement should be given decisive weight if:

‘freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’

Baroness Hale, dissenting in part, cautioned against assuming equal bargaining power and highlighted the potential for gendered disadvantage ([172]–[180]).

Three key principles emerged from Radmacher, which now guide judicial treatment of nuptial agreements:

(1) Autonomy – respect for individual decision-making by competent adults. To do otherwise just because the court knows best was said to be ‘paternalistic and patronising’.

(2) Understanding – each party must have a full appreciation of the agreement’s implications. Legal advice is not essential, but its absence may weaken the argument for enforceability.

(3) Fairness – an agreement must not lead to an unfair result at the time of divorce. The needs of any children and the financially weaker party remain a paramount. The fact of an agreement can alter what is fair.

The notion of fairness is shaped by various factors that may enhance or reduce the weight of the agreement, including the presence of disclosure, and the parties’ understanding and intentions (see [68]–[83]).

These principles are now central to the judicial evaluation of agreements. Whilst they work coherently in the context of bespoke English agreements, their application to foreign marital property regimes – often executed without formal legal advice or negotiation, or as part of a default civil law framework – is more difficult.

In the years since Radmacher, the courts have grappled with how to treat agreements electing a foreign property regime. The resulting jurisprudence is nuanced and, at times, inconsistent.

In Z v Z (No 2) [2011] EWHC 2878 (Fam), [2012] 1 FLR 1100, Moor J considered a French couple who had signed a séparation de biens agreement before a notary. Unusually, the agreement included a clause addressing divorce. The wife accepted that it limited her claim to needs. The agreement was upheld in part; awarding the wife 40% of the £15m pot to meet her needs.

By contrast, in V v V [2011] EWHC 3230 (Fam), [2012] 1 FLR 1315, Charles J gave more weight to an agreement that made no reference to divorce. After a short marriage, the wife’s outright needs award at first instance was reduced on appeal to a Mesher-style arrangement, acknowledging the existence of the agreement.

A more distinct line emerged following B v S [2012] EWHC 265 (Fam), [2012] 2 FLR 502, where Mostyn J differentiated between foreign marital property regimes and bespoke English agreements. His reasoning was later adopted by Roberts J in Y v Y [2014] EWHC 2920 (Fam) and Baker J in XW v XH [2017] EWFC 76. In B v S, Mostyn J observed:

‘[5] … there is a marked difference between a negotiated pre-nuptial agreement which specifically contemplates divorce and which seeks to restrict or influence the exercise of discretion to which the law gives access, and an agreement made in a civil jurisdiction which adopts a particular marital property regime. …

[8] … a civil law matrimonial property agreement is different in character and objective to a “common law” pre-nuptial agreement which seeks to abrogate or influence the right to invoke a statutory discretion to redistribute fairly (or equitably) all the resources of the spouses following their divorce.’

Baker J expanded upon this in XW v XH, stating at [144] that for a nuptial agreement to have effect, the parties must have intended it to apply regardless of jurisdiction, and understood its terms and legal implications beyond the jurisdiction in which it is made. At [150] he noted:

‘in some cases it will be appropriate for the court to uphold an agreement contained in the election of a matrimonial property regime, but in my judgment it will in many cases be more likely that the court will conclude that it would not be fair to hold the spouse to such an agreement, particularly where the election is made in a language with which he or she is not familiar and where the legal implications of the election are not made fully clear. Plainly, the court will be more likely to uphold an agreement which is contained in a bespoke document, in the language or languages which both parties understand, and when the legal applications, in particular on divorce, are clear.’

In B v S and XW v XH, the agreements were disregarded entirely. In Y v Y, limited weight was afforded – primarily to exclude non-matrimonial property from the sharing principle – although, functionally, this was not dissimilar to disregarding the agreement altogether.

The Court of Appeal refined the analysis in two key cases:

• Versteegh v Versteegh [2018] EWCA Civ 1050, [2018] 2 FLR 1417: the absence of legal advice is not fatal to enforceability. If an agreement was signed in a country in which they were commonplace, the absence of legal advice about its terms in England and Wales did not automatically mean that a party would be found to lack the necessary understanding. This is not a rejection of the value of legal advice entirely, but a recognition that its absence is not determinative.
• Brack v Brack [2018] EWCA Civ 2862, [2019] 2 FLR 234: the court confirmed that whilst an agreement excluding sharing is likely to mean that an award will be limited to needs, that is not inevitable. The claimant spouse may still receive an award in excess of need (i.e. based on sharing). An agreement does not oust the s 25 discretionary jurisdiction.

More recent cases involving French séparation de biens contracts and French couples have yielded varied outcomes:

• In AD v BD [2020] EWHC 857 (Fam), Cohen J gave the agreement no weight. Signed the day before the wedding, with no meaningful opportunity for consideration or advice, the wife was found not to have understood it.
• In CMX v EJX [2022] EWFC 136, [2023] 2 FLR 14, Moor J heard conflicting evidence about the execution of a séparation de biens agreement signed 2 weeks before the wedding before the wife’s family notary. The husband said the notary had explained its significance; the wife claimed to have no recollection. The husband’s account was preferred. The wife’s full sharing claim (c. £12m) was reduced to an award of £9.46m – 45% of the liquid or 38.9% of the overall assets. Moor J observed that had the agreement sought to exclude needs – rather than merely omit reference to them – it would likely have been disregarded entirely.
• In BI v EN [2024] EWFC 200, Cusworth J upheld an agreement signed a week before the wedding before a consular official. Despite no legal advice or disclosure, the wife was highly educated and found to understand the agreement under French law. She received a needs-based award of £23m (20–26% of the total assets). Although the wife’s award was greater than what she may have received in France under prestation compensatoire, it was substantially less than the 50% she would have received absent the agreement.

These cases suggest a shift in judicial attitude. The earlier decisions treated foreign property regimes as distinct in nature and purpose from bespoke English pre-nuptial agreements, but these more recent cases show a growing willingness to afford them weight – even where there was no specific legal advice, disclosure or contemplation of English proceedings. The focus appears to have moved to broader ideas of intention and general understanding.

Courts increasingly emphasise whether the agreement was ‘commonplace’ for parties of a particular nationality (Versteegh), but arguably this risks imputing knowledge based on background, rather than encouraging the examination of the specific facts of the case.

As Radmacher itself cautions (at [183]), the only relevance of foreign law is what it reveals about the parties’ expectations and intentions at the time the agreement was signed. The growing reliance on cultural assumptions – e.g. that French nationals must understand the séparation de biens system, for example – may blur that careful line.

Foreign property regimes: nature and function

Marital property regimes from civil law jurisdictions – most often continental Europe – rest on legal and cultural foundations distinct from the fully negotiated, bespoke pre-nuptial agreements familiar to English practitioners. Recognising this is essential to any principled assessment of how such foreign instruments should be treated in English financial remedy proceedings.

In jurisdictions such as France, Belgium and Italy, matrimonial property regimes are not merely private agreements between individuals; they are formalised legal frameworks often provided for by statute. Spouses may elect from various statutory regimes: e.g. séparation de biens (separation of property), communauté réduite aux acquêts (post-marital community of property) or communauté universelle (community of all property). A default regime applies in the absence of an election.

These regimes are not instruments of negotiated settlement in the English sense. They are often formalised before a notary but typically involve little individual negotiation or disclosure. A broadly standard-form contract is signed, often shortly before marriage, with minimal discussion beyond the statutory framework. The process is often brief and perfunctory. Independent legal advice is rare; parties frequently disagree over what was said in the notarial meeting.

In contrast, English pre-nuptial agreements are usually the product of individualised negotiation, often involving detailed disclosure and independent legal advice. Their efficacy, especially post-Radmacher, turns not merely on their formal validity but on the substantive fairness of their terms and the circumstances in which they were agreed.

Foreign marital regimes – though procedurally formal – do not always reflect informed, deliberate decision making. Parties are choosing between fixed legal options, not bespoke principles. Rather than opting out of discretion and into certainty (as English bespoke agreements attempt to do), parties electing a matrimonial property regime are choosing between predetermined sets of rules (Marital Property Agreements, Law Com No 198 (TSO, 2011)). It is a different exercise to the English bespoke agreement. In this way, the choice of a regime is different in kind from the negotiation of a contract. The fact that a regime was executed with the assistance of a notaire does not mean the parties had independent or comprehensive legal advice – especially when viewed through the lens of English notions of informed consent and contractual fairness.

The assumption of a ‘cultural understanding’ also complicates matters. In civil law systems, the election of a regime is often a routine part of wedding preparation. A party may agree to a regime without considering its long-term impact, especially if they did not expect to divorce under a discretionary regime or have little reason to believe that the arrangement will be determinative outside their home jurisdiction. The fact that the parties involved are French/Italian/etc should not automatically suggest that there has been a meeting of minds as to how these agreements operate.

Moreover, in many such systems, these regimes function primarily as inter vivos rules – governing asset ownership and liabilities during the marriage – rather than as comprehensive tools for post-divorce settlement. This can often be the central reason behind why one regime is chosen over another (e.g. an entrepreneur wanting to have a way to shield assets from their creditors by putting them into their spouse’s name, behind the protective wall of a séparation de biens arrangement). The fact that the election of this regime will also have consequences on divorce may not be in the parties’ minds at all at the time that they sign the document.

In short, these are not English pre-nuptial agreements in another language; they are different in purpose, process and perception.

Safeguards and understanding

One of the principal distinctions between the election of a matrimonial property regime and a bespoke pre-nuptial agreement lies in the circumstances of their creation. English law’s readiness to give weight to nuptial agreements is grounded in procedural safeguards – designed to protect autonomy and understanding, while mitigating against undue pressure or ignorance. This is reflected in Radmacher and the range of factors enhancing or detracting from an agreement’s weight (see [68]).

The Law Commission’s 2014 report, Matrimonial Property, Needs and Agreements (Law Com No 343), proposed formal safeguards for ‘Qualifying Nuptial Agreements’ to be binding, including that:

• the agreement is contractually valid;
• it is made by deed and includes a statement acknowledging reduced judicial discretion;
• it is not made within the 28 days of the wedding;
• the parties exchanged material financial disclosure; and
• each received legal advice as to the rights and obligations they may be waiving (such as a claim to sharing).

The Commission emphasised that disclosure and legal advice – key for understanding – should not be waivable.

Though not enacted, these safeguards have become best practice and are routinely used as a benchmark when assessing enforceability under Radmacher.

Foreign marital property regimes rarely meet these criteria. They are often:

• executed before a single notary, without independent legal advice;
• finalised without financial disclosure;
• signed shortly before the wedding, sometimes just days in advance.

The absence of these safeguards raises legitimate concerns as to whether such agreements truly reflect informed consent – particularly when viewed through the lens of the English court’s emphasis on fairness, autonomy and understanding.

Autonomy, fairness and the problem of parity

In her article ‘Pre-nuptial Agreements – A Good Route to Autonomy?’ [2024] 2 FRJ 163, Dr Sharon Thompson challenges the assumption that pre-nuptial agreements reliably reflect individual autonomy. She critiques what she terms ‘the blind respect for neo-liberal autonomy’ underpinning judicial reasoning post-Radmacher, arguing that this often benefits the economically stronger party.

Thompson highlights the psychological realities influencing decision-making in intimate relationships – optimism bias (the belief that the relationship will not end) and bounded rationality (difficulty in forecasting future consequences). As she argues, these dynamics may cause parties, especially the economically weaker one, to accept terms that are against their best interests, even absent overt pressure.

To suggest that such a spouse is adequately protected by the residual safety net of a needs-based award is, as Thompson argues, insufficient. Needs are assessed through a discretionary lens, and often fail to reflect anything close to what would otherwise be a sharing entitlement.

These concerns are particularly acute in the context of foreign marital property regimes, signed shortly before the wedding, where the implications of excluding sharing are far-reaching and rarely understood in full. In BI v EN, for example, the parties signed a séparation de biens contract a week before the wedding, before a consular official. Despite no independent legal advice or disclosure, the court found the wife had full appreciation of its effect under French law. She received £23m to meet her needs – far less than the 50% she would have received absent the agreement.

This case illustrates the tension between formal autonomy (education, lack of coercion) and substantive autonomy. It is doubtful either spouse foresaw the scale of matrimonial wealth generated (Radmacher at [80]–[81]). Would the wife have signed the agreement had she known the divorce would occur in England, with vastly different rules? Her ‘full appreciation’ may reflect the technical requirements of Radmacher, but it sits uneasily with the outcome she ultimately bore.

Conclusion: parity or particularity?

The central question is whether foreign marital property regime agreements should be treated with the same weight as bespoke English pre-nuptial agreements. The short answer is that they should not.

While the courts rightly respect personal autonomy and intention, they must also remain alert to the differences in form, context and function. Foreign regimes are often standardised, executed without proper legal advice, disclosure or negotiation. To treat them as equivalent to bespoke English agreements is to risk mistaking procedural formality for substantive fairness.

Recent case-law suggests a growing willingness to impute understanding based on cultural familiarity. This risks diluting the fairness test established in Radmacher. It replaces scrutiny with assumption. Inferred consent is not the same as informed consent – especially where the consequences are profound.

As Dr Thompson observes, autonomy is not just freedom from coercion. It requires meaningful participation in shaping one’s legal and financial future. Agreements signed days before a wedding, without full information or advice, often fall short of this ideal.

To treat the election of a foreign regime as equivalent to a bespoke pre-nuptial agreement risks attributing to it a level of intentionality and individualisation it may not possess. It is not enough to uphold these agreements out of respect for the legal custom of the foreign jurisdiction. The treatment of such agreements must be informed by an appreciation of their true nature – including the extent to which they were understood, accepted and relied upon by the parties, and their impact during the marriage.

In a jurisdiction committed to discretionary justice, foreign regimes are just one factor in the s 25 exercise – but not on equal footing with bespoke agreements that reflect English legal values and procedural safeguards. Anything more would risk injustice in the name of contractual consistency.