In the leading case in this area, Radmacher in the House of Lords, the relevant pre-nuptial agreement was signed in Germany from where the wife originated. This did not make it any the less enforceable. Similarly if the pre-nuptial agreement is signed in South Africa, it is still enforceable in the UK between the parties. This rule applies even if the wedding takes place in another jurisdiction. Remember that it is where the parties are resident at the time the marriage breaks down that will assume jurisdiction over the divorce. Accordingly, if that is the UK, there is nothing to prevent a pre-nup signed in South Africa being enforced in the UK.
If you wish to discuss, please feel free to ask further questions.
Thanks for your help.
I understand that a pre-nup would be enforceable where ever we may be, the question is where you don't have a pre-nup.
SA marriage laws are quite specific on what happens if you don't have a pre-nup, and how property is divided should the marriage end. When registering the marriage in SA, certain elections have to be made.
If we lived in the UK when the marriage ended, would those elections we made in SA, and the SA law be enforceable, or would we follow UK marriage law?
The general rule of thumb is 50/50 split of the assets. However, this figure can change depending on certain circumstances, for instance, if there are children.
Does that mean that we would be bound by UK marriage laws because we are living there, and the SA laws would not be applicable?
Yes, that is correct.
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