Untangling the legal affairs of married foreign nationals can make interpreting Resolution 1441 look like child’s play, say Dhana Sabanathan and Katie Longmate from Harbottle & Lewis
MR BANKS, FROM Italy, is a wealthy financier based in London. He is engaged to Miss Moneypenny, whom he met while on holiday in Brazil a few months ago. They are due to get married next year but cannot decide on the location. Mr Banks’ family are all in Italy, and would like to see him married there. However, the majority of Mr Banks’ friends are now in the UK. Miss Moneypenny would like the wedding to take place in her family home in Brazil, but has conceded this would be too far for Mr Banks’ friends and family to travel. By way of compromise, Mr Banks has agreed to spend some time getting to know her family in Brazil before the wedding and they are due to fly out to Rio for six months.
Mr Banks spends most of his time between his flat in Knightsbridge and his mansion in Surrey. He also regularly jets off to the family holiday home in France. Mr Banks has been speaking to a colleague who has just been through a messy divorce and advises him to get a pre-nuptial agreement. Mr Banks is now worried about how to raise this potentially thorny issue with his fiancée. Mr Banks has always wanted enough children to fill a football team and the couple plan to start a family straight after the wedding. Mr B is also concerned about succession and whether he should make a will.
Italian issues
Snake: To pre or not to pre(nup). If Miss Moneypenny agrees to a pre-nuptial agreement, Mr Banks would have to make sure it is not governed by Italian law as it would not be enforceable in the event divorce proceedings are launched (and heard) in Italy. However, couples can elect to be married under a separate property regime, which could help protect Mr Banks’ assets in the event of divorce.
Snake: As Mr Banks is an Italian national, complex Italian ‘forced heirship’ rules may apply to his estate. He would not have complete freedom to dispose of his estate as he sees fit.
Ladder: If Mr Banks believes he will be resident in the UK at the time of his death, Italian private law allows him to choose to make a will that is governed by the laws of England and Wales — a jurisdiction with no forced heirship rules.
Brazilian issues
Snake: If Mr Banks finds spending time with Miss Moneypenny’s family in Brazil too stressful and calls off the engagement, he may still find that Miss Moneypenny has rights over his assets as his ‘common law spouse’ in Brazil. Unless a partnership agreement has been entered into, such a couple will be treated as if they had married under the ‘partial property regime’. Under this regime, an unmarried partner in Brazil is entitled to half of his or her former partner’s assets that were obtained during the period of their relationship.
Related
Ladder: Brazilian succession law may apply to Miss Moneypenny’s worldwide estate. Under the Brazilian Civil Code there are certain heirs who are entitled to receive half of the assets. If the marriage proceeds and Miss Moneypenny dies before Mr Banks (leaving no children), he would be entitled to half of her estate. This would apply regardless of any wishes she had expressed in her will.
French issues
Ladder: Prenuptial agreements are recognised in France in the event divorce proceedings are launched (and heard) in France.
Ladder: If Miss Moneypenny is resistant to signing a pre-nuptial agreement, she may be more amenable to electing a marital regime to apply to all their land rights in France. There are four matrimonial regimes: two communal regimes and two ‘separatist’ regimes. Broadly speaking, under a communal regime, all assets and all debts are jointly owned by the couple; and under a separatist regime assets are kept separately owned.
Snake: If the couple marry in France and do not elect a specific regime, it is likely they will be subject to a communal regime.
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Snake: France has forced heirship rules where French law applies to a will. In relation to Mr Banks’ holiday home, Miss Moneypenny and any children they have will have automatic rights to an interest in this property.
UK issues
Snake: There is no formal marital property regime, as England and Wales operate a discretionary system on divorce, which may result in uncertainty for Mr Banks.
Ladder: Following recent case law there is a presumption that pre-nuptial agreements freely entered into will be upheld, unless they are unfair. Historically even where a couple were married outside of the UK, on divorce the courts of England and Wales could disregard the marital or divorce regime that would have applied had the couple divorced elsewhere. However, it would appear from recent case law that foreign regimes will be given greater recognition by the courts in England and Wales.
Ladder: The UK is an attractive jurisdiction for wills as it recognises trusts. Unlike France and Italy, trusts properly established under any jurisdiction are recognised in England and Wales. The ability in the UK to appoint trustees with the discretion to make appointments to beneficiaries can give Mr Banks peace of mind that his estate will be preserved.
