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Expat Investor : September October 2009
September/October 2009 EXPAT INVESTOR 9 MARITAL PLANNING fair outcome finalising the agreement to give a proper period of reflection before the marriage. Ideally, this should be at least 21 days. Any shorter period will mean that it may be better to enter into the agreement afterwards. While having an agreement is strongly recommended, it is also important to appreciate that the discussion which is necessary to arrive at the agreement can bring stress in itself. It is vital, therefore, that both the people getting married and their lawyers work together to arrive at the ter ms of the agreement. Pre-marital agreements in the Middle East As a family lawyer, it has been particularly noticeable to me in recent years that more and more people want agreements drawn up setting out how matters should be approached if, sadly, their relationship breaks down following marriage. Another key trend is the fact that many people, or those they are in relationships with, have connections in the Middle East. Even though someone is based there, English law can still often apply. This is because English expats are there on visas and so the English court remains relevant, even if they have been outside England for many years, as they are still treated as domiciled in England. It is a sad fact that in recent years, there has been a sharp increase in the number of expat marriages in the Middle East that founder. From experience, various factors have contributed to this, such as: reluctant agreement to relocate pressure of work, including travelling long periods of separation change of lifestyle loss of support from friends and family back in the UK. Over recent years, pre-marital agreements have become much more persuasive in court when deciding the financial outcome on the breakdown of a relationship. This makes them very worthwhile for married couples to have. For example, in a leading case last year the existence of a pre- marital agreement directly led to the financial claims before the court being dropped and the ter ms of the agreement being applied. The courts have been encouraged in this approach by both legal organisations and the UK government. At this moment, the Law Commission in England is working towards drafting a Bill to make agreements enforceable. Marriage has obvious far reaching implications emotionally, legally and financially. Just as it is prudent to enter into financial planning for the future generally, it is just as important to address the contingency of possible marital breakdown and avoid increased acrimony and unhappiness if that does indeed happen. This is even more the case given the current state of the English law. The court has far reaching powers to order payments of income or capital, deal with the occupation of the home and potentially share pensions. It can also make financial and other orders regarding children. The court has a wide discretion and, in practice, that leads to inevitable uncertainty with additional time and cost being incurred. For an agreement to have the best chance of being considered effective by an English court there is a need for it to satisfy certain criteria, namely: lack of pressure to sign disclosure of financial position independent legal advice the future, perhaps with the arrival of children or on a change of job. There is also the ability to choose that not only English law will apply but also the English courts will resolve matters. Local law in the Middle East and how the courts there resolve matters is very different to English law and can lead to unexpected and unwelcome outcomes both as regards children and money. It is very important to instruct a lawyer who has good international links so that proper advice is obtained not only about the position in England but also any other country which might ultimately become involved. The fact must also be borne in mind that in many other countries, agreements are enforceable in their own right and you need to be aware of the implications. The developing process of collaborative law is particularly well suited to this approach with a series of meetings attended by all parties focusing on a good outcome for both the husband and wife to be. An agreement can be as long or as short as suits the particular circumstances. It should cover all the points which will need to be resolved if the relationship breaks down and specific points such as trying to protect inheritances from future claims for example. It should also build in the ability to review matters as personal circumstances change in Grant Howell is a partner and primary Middle East contact in the family team at Charles Russell LLP. Here he outlines why pre-marital agreements for expats based in Middle East locations are essential. Any family lawyer should tell you that the best outcome on relationship breakdown is to arrive at arrangements which the couple both agree on. Entering into an agreement at the outset gives the maximum possibility of this being achieved. While it is very important to go through the proper process, if this is done, the nature of the agreement will undoubtedly play a central role in resolving matters should, unhappily, the relationship not ultimately work out.