DEAL OF THE MONTH OCTOBER 2016
DEAL OF THE MONTH
Our Corporate Solicitor and Managing Director, Tatiana Sharposhnikova, talks about the enforceability of agreements concluded abroad and the enforceability of decisions reached by foreign courts in the UK…
Many of our clients ask us to assist with the preparation of prenuptial and postnuptial agreements. At the end of September, we had a client who came to us with an already drafted and signed prenuptial agreement. This was an interesting matter since the agreement was not drafted and signed in the UK in accordance with English law, although the properties, which were listed as the assets belonging to the client, were located in the UK. All the client wanted to know was whether the agreement was enforceable in the UK.
It is important to emphasise, that any assets registered in the name of one of the parties (in our case in the name of our client) indeed belong to that party and that the other party to the agreement promises to release all rights and/or not to pursue claims in respect of any rights acquired as a result of marriage. This has to be clearly stated in the agreement.
Rules of enforceability in relation to the agreements concluded abroad are complex and depend on many factors. In case of a dispute, courts usually consider not only the intentions of both parties specified in the agreement but also jurisdiction to which the agreement or the matter is related the most. For example, residence of both parties and the location of assets.
As to the decisions made by foreign courts, the UK rules of enforceability are again complex and depend on many factors. However, there are some precedents to help to predict outcome: Aeroflot Russian Airlines v Berezovsky  EWCA Civ 20. In this case, the court decided that the decision reached by a Russian court could be enforced in the UK in the following circumstances:
- The decision is final and cannot be appealed;
- No defence;
- The respondent was present or at least was a resident in the jurisdiction where a court decision was reached.
Therefore, if the wife of our client will make a claim in the UK, the agreement signed in Russia may be used by our client as a defence, taking into account the rules of enforceability in this country. To make sure that the parties are duly protected, we always advise our clients to prepare and sign a similar agreement but in accordance with local laws of the countries where they have assets.
Please note that the rules are complex and the above does not constitute a legal advice and is for the information only.