Divorce and Family Senior Associate Jenny Duggan spoke in Dubai at the Half Year Conference of the International Association of Young Lawyers (AIJA) in November 2021. Jenny formed part of a panel discussing ‘Entrepreneurship and Legacy Planning in Uncertain Times’. Other members of the panel included lawyers from Brazil, Switzerland and Dubai.

The panel recognised that at a time when entrepreneurial families are increasingly global, with assets in countless jurisdictions and worrying about erosion of their privacy, innovative structuring solutions and tools are required. There was an overview of the latest structuring creations, practical trends in the industry and the key factors to consider when considering a jurisdiction for structuring, asset protection and/or legacy planning purposes.

The discussion was wide-ranging and included a comparative discussion of the difference between nuptial agreements in England and Brazil.

Themes discussed

The topics covered included:

1. What are the common issues faced by entrepreneurs thinking about the future and succession, and what vehicles are used for succession planning?

   There was a discussion of the way in which there has been an increased use of pre-nuptial agreements in England since the landmark Supreme Court case of Radmacher v Granatino in 2010. The use of foundations, trusts and general proxies were explored from both a UAE and Swiss perspective.

2. What role do nuptial agreements play for entrepreneurs?

   The different approaches to nuptial agreements in England compared with Brazil were explored. Of particular importance for entrepreneurs was the way in which an exponential growth in the value of a business could be protected from a ‘sharing claim’ from the recipient spouse if the terms of a pre-nuptial agreement are upheld.

3. What simple practical steps should business owners put in place to protect their interests in their business in the event of a divorce?

   There was a focus on the emotional aspects of entering into a pre-nuptial agreement  which would be relevant across the various jurisdictions represented on the panel; in particular, the sensitive way in which raising the prospect of a pre-nuptial agreement must be approached and the delicacy of the negotiations. The way in which a pre-nuptial agreement could be considered an insurance policy of sorts, which neither party hopes ever to rely upon, was seen to be a helpful way to frame such discussions.

   There was also some suggestion that a pre-nuptial agreement could, rather counterintuitively, be considered romantic as the parties are at the beginning of hopefully the rest of their lives together so are looking to provide for each other in the most generous light.

The panel was informative in offering complimentary perspectives from such wide ranging jurisdictions, approaching the topic of nuptial agreements both legally and culturally in very different ways.

Find out more about pre-nuptial and post-nuptial agreements