In this e-discussion, Olivia McLaren, Head of US Immigration, and Nilah Ulhaq, Senior Solicitor in the Family Law Division - both experts in their fields at Burness Paull LLP - cover Pre-nuptial Agreements and joint assets when a UK citizen and a US citizen marry.

Olivia: I think both of us have advised many couples in trans-Atlantic relationships (UK/US) who are planning to combine a US household with a UK household. In your opinion, does every couple need a Pre-nuptial Agreement, or just those with significant assets?

Nilah: Pre-nuptial Agreements (Pre-nups) can be for everyone and anyone. I have prepared Pre-nups for young couples buying their first flat together, and older couples entering their second marriages who have significant wealth they’ve built up during their lifetimes. 

Olivia: Have you had any cases where a US/UK couple split and faced problems because they didn’t have a Pre-nup?

Nilah: Yes - with Pre-nups, couples can regulate various financial matters in the event they separate. Where a couple don’t have a Pre-nup, and choose to divorce in Scotland, their assets would be divided in line with our legal principles which may not align with what they consider is fair. 

Is it problematic from a US immigration perspective if the couple have a Pre-nup? 

Olivia: No, not in general. It’s not something that usually comes up in the U.S. immigration adjudications context, and if it did, I don’t view the existence of a Pre-nup as indicating that the relationship was “fraudulent”. So, it sounds like a favourable recommendation from us.

Nilah: Definitely – ultimately, Pre-nups give a couple control over their financial future. It is like an insurance policy – hopefully it won’t need to be used, but it is there in case.

Olivia: On the US immigration side, we usually recommend that a couple to develop joint financial documents, such as joint bank accounts, joint tenancy agreements/mortgages, and other joint assets, to prove the legitimacy of their marriage – that is that it is not a scam to obtain immigration status. This documentation is submitted at several points in the US immigration process (i.e., initial spousal visa application, the I-751 petition to remove conditions on lawful permanent residence, and the 3-year naturalization (U.S. citizenship) application). If the couple split, does it matter if they have combined their accounts and assets? 

Nilah: It depends on the couple’s circumstances and, if they have a Pre-nup, what their Pre-nup says. Taking some family law advice when putting assets in joint names is always a good idea.  

And what if a couple do not join their accounts and assets; will that stop them from proving the legitimacy of their relationship for US immigration purposes?

Olivia: No, not necessarily. Before the couple live together in the same country, it’s incredibly difficult to combine accounts and assets. In those cases, we focus on evidence of visits (e.g., boarding passes) and relationship story evidence (e.g., communications). Once they have lived together, there are other documents/methods of proving relationship legitimacy. For example, if there is substantial evidence that they live together at the same address, then joint accounts may be unnecessary. 

If you are trying to navigate a move to/from the US, our Team are here to guide you through that process.  Whether you are embarking on the move alone, or with your partner or spouse, having expert legal advice throughout is important. 

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