What’s the legal position regarding pre-nuptial agreements in the UK? I am a British citizen about to get married to a British woman. We plan to remain in England. There is a significant imbalance in assets: I have in excess of £1m, including equity in my house and investments. My wife-to-be has a few tens of thousands in savings. There is also more wealth in my family which I am likely to inherit. I would like to ringfence my existing assets and potential inheritance from any break-up. Is a pre-nuptial worth the hassle and how would I go about drawing one up?

James Freeman, partner at solicitors Speechly Bircham, says that there is a case (Granatino v Radmacher) pending in the Court of Appeal that may have an impact on the legal status of pre-nuptial agreements in England and Wales. Judgment has yet to be delivered.

The current position of pre-nuptials in English law is that they are not contractually binding (as they may be in other countries), but in a divorce case they may influence the court as a pertinent factor. In other words, a judge in the family courts does not have to follow a pre-nuptial, but may well do so, at least to an extent, if the agreement is reasonable and accompanied by some important formalities. There is likely to be the same treatment of pre-registration agreements for civil partners.

Many pre-nuptials seek to ringfence assets accrued before marriage. Potential inheritances may also be excluded, with the agreement essentially providing that the couple will, in the event of a divorce, share the wealth they have built up together – what might be called the “fruit of the marriage”. However, it may be wise to ensure that in any circumstances neither party will be left with inadequate financial provision, and any children will need to be provided for properly.

In your case, a pre-nuptial is likely to be worth the hassle because without an agreement everything, including the pre-marriage assets and inheritances, could be up for grabs.

It is important that pre-nuptial agreements are accompanied by adequate financial disclosure and that both parties receive independent legal advice – otherwise the agreement may have little impact on the court. It is also advisable to finalise an agreement well before the marriage – at least three weeks before, if possible. Thus anyone considering a pre-nuptial should consult a specialist lawyer as early as possible.

My daughter lives in France with her French husband and their children. She has a bank account and some investments here in England. She is non-resident for UK tax purposes but retains her UK nationality. Should she make a will in the UK to facilitate probate or will all her assets be subject to French inheritance laws?

Robin Paul, partner in the estates, succession and trusts group at law firm Withers, says there is a fundamental difference between English succession law, which allows you to leave your estate to anyone you want (Scotland has different rules), and the succession laws of most European countries, which provide for fixed shares to pass to close relatives – overriding any contrary provisions in a will.

This is currently a hot topic and the EU is expected very shortly to produce a draft regulation – “Brussels IV” – dealing with conflicts of laws on wills and succession between EU member states.

Your daughter’s position is relatively straightforward. If she were to die while living in France, her will would need to be probated (proved) in England. But,
as a UK national who is
tax resident in France, a will in either French or English form will be valid and can be probated over here.

Assuming your daughter is domiciled in France – basically, intends to live there permanently – her bank accounts and shares in England will pass under French succession law and be split between her husband and children.

So it may be better to have a French will dealing with her worldwide estate (including the UK), complying not just with French formalities (on which French legal advice should be taken) but also with French succession rules (ie who inherits what).

However, if your daughter had a house in England (as opposed to bank accounts and shares), then English succession law would apply, so that she could leave the property to whoever she liked irrespective of any limitations under French law. In that case, it might then be worth having an English will covering just the English property.

Views vary as to whether in circumstances where there is a property in the UK, individuals should have one (worldwide) will or wills in both countries, but if you do have separate wills you must ensure that they do not inadvertently revoke or contradict one another.