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Prenups Around the World

By Jeremy D. Morley

When people who live in different jurisdictions or who contemplate doing are planning to marry they should consider entering into a prenuptial agreement. They or their advisers should consider the law of all jurisdictions.

We draft prenuptial agreements for international people, often acting in collaboration with lawyers in other countries.

The information below is for informational purposes only. It must be checked by legal counsel in the local jurisdiction before being acted on.

AUSTRALIA
Prenuptial agreements, known as "binding financial agreements," first became enforceable in Australia in 2000 with the enactment of the Family Law Amendment Act 2000. Part VIIIA of the Family Law Act sets forth particular provisions concerning the oversight to be given to such agreements by family law solicitors. For a binding financial agreement to be binding it must be in writing signed by both parties; be given (the original) to one party with a copy given to the other; specify the extent of any spousal maintenance provided; and state that both parties have received specified independent legal advice and annex a certificate of an independent lawyer to that effect.

An agreement will not be binding if it was obtained by fraud, was made under duress, by mistake, by virtue of undue influence, if it is impracticable for all or part of the agreement to be carried out, if there has been a material change in the care of a child leading to hardship, if a party engaged in unconscionable conduct when making the agreement, such as where one spouse is at a disadvantage and the agreement runs contrary to good conscience.

AUSTRIA
Austria is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements.

BAHAMAS
Prenuptial agreements are not enforceable in the Bahamas but courts might take them into account in determining the intention of the parties. In general, the Bahamas will follow the English approach.

BRAZIL
Prenuptial agreements are enforceable in Brazil. See Article 256, II of the Civil Code.

CANADA
Prenuptial agreements are enforceable in Canada. Courts in Ontario and other common law provinces of Canada previously considered marriage contracts to be contrary to public policy and unenforceable, but the 1978 Family Law Reform Act (now continued in the Family Law Act) specifically authorizes marriage contracts. The Family Law Act provides that a court may set aside a provision for support or a waiver of the right to support in a marriage contract and may determine and order support even though the contract contains an express provision excluding the application of this section:

  • If the provision for support or the waiver of the right to support results in unconscionable circumstances;
  • If the provision for support is in favor of, or the waiver is by or on behalf of, a dependant who qualifies for allowance for support out of public money; or
  • If there is default in the payment of support under the contract or agreement at the time the application is made.

As a result, a provision in the marriage contract either limiting or precluding a claim for future support is very much subject to the discretion of the court at the time an application for support is made.

Even as to assets, prenuptial agreements are not insurmountable. A Canadian court might modify or even ignore an agreements in some circumstances, such as if an unforeseen, financially disabling or devastating event has occurred. Some provinces expressly provide that their courts may set aside a prenuptial agreement if it is "unfair." Thus, Section 51 of British Columbia's Family Relations Act states that even if there is a valid marriage contract, the court may re-divide the assets on the basis of fairness

CHINA
Prenuptial agreements are now enforceable in China. Article 19 of the 2001 Marriage Law specifies that:

"So far as the property acquired during the period in which they are under contract of marriage and the prenuptial property are concerned, husband and wife may agree as to whether they should be in the separate possession, joint possession or partly separate possession and partly joint possession. The agreement shall be made in writing. The provisions of Articles 17 and 18 of this Law shall apply to the absence of such an agreement or to a vague one.

The agreement reached between the husband and wife on the property acquired during the period in which they are under contract of marriage and on the prenuptial property is binding on both parties.

If husband and wife agree, as is known to the third party, to separately possess their property acquired during their marriage life, the debt owed by the husband or the wife to any other person, shall be paid off out of the property separately possessed by him or her."

ENGLAND and WALES
In England and Wales, the courts have traditionally given little weight to a prenuptial agreement, and have viewed the enforcement of prenuptial agreements as being against public policy. Thus, in F v. F (Ancillary Relief: Substantial Assets), (1995) 2 F.L.R. 45, Thorpe J. stated that a prenuptial agreement must be "of very little significance" since the distribution of assets must take place in accordance with statutory formula and "cannot be much influenced by contractual terms." Likewise, in N v. N (Jurisdiction: Pre-Nuptial Agreement) (1999) 2 FLR 745 the court refused to enforce even a portion of a prenuptial agreement in which the husband had agreed that, in the event of a divorce, he would take all steps religiously necessary to allow his wife to obtain a "get," allowing her to remarry under Jewish law. The court held that "even if one divides up the antenuptial agreement in this case, and looks at the individual clauses separately, one cannot, in my judgment avoid the fundamental proposition that each is part of an agreement entered into before marriage to regulate the parties' affairs in the event of divorce. The public policy argument, therefore, continues to apply." [754f].

However, the traditional view is shifting. The English courts appear to be now saying that a prenuptial agreement can be a material consideration when considering what adjustments to make to a divorcing couple's financial circumstances on divorce. In M v. M (Pre-nuptial Agreement) (2002) 1 FLR 654, the court was prepared to take the couple's prenuptial agreement into account as a factor tending to reduce the final award to the wife. Most significantly, in K v. K (2003) 1 FLR 120, the court held that the wife was bound to terms concerning capital distribution that she had agreed to in a prenuptial agreement she had signed. The court set forth the factors to be considered in determining the weight to attach to a prenuptial agreement. The decision indicates that, where there is no duress, where the parties have received independent legal advice, where the relevant facts have been disclosed and the agreement is not manifestly unfair, English courts are increasingly likely to uphold the terms of a prenuptial agreement.

English courts might enforce foreign prenuptial agreements if the applicable law is that of a jurisdiction that enforces marital agreements. In general, if the married parties are domiciled in different jurisdictions, English law provides that the matrimonial domicile (which, even today, usually follows the domicile of the husband) determines the law applicable to the couple’s movable property. Therefore, if the husband is domiciled in a jurisdiction that would enforce a prenuptial agreement, the terms of the agreement should be applicable to all of their property except for real estate.

See our article Enforceable Pre-nuptial Agreements: The World View

FINLAND
Prenuptial agreements are enforceable in Finland. A new law applies in Finland which allows the spouses to decide in advance which law will govern their marriage, provided that at least one of the spouses has a connection based on nationality or domicile to the State whose law they want to apply.

FRANCE
France is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements. Specific provisions concerning prenuptial agreement are also set forth in the Code Civil Francais, art.1387 et seq.

See France Civil Code Prenuptial Agreements

GERMANY
Prenuptial agreements are enforceable. However, Germany's Federal Court of Justice recently ruled that notarized prenuptial agreements that seriously disadvantage one party in a marriage could be deemed invalid. The judges stated that while, in principle, a contract may state that one of the partners has renounced his or her right to receive alimony, if the agreement is one-sided it would be morally unacceptable and could therefore be challenged. The court also ruled that a spouse is free to contest the contract in instances of imbalance where her partner's income has risen dramatically during the marriage because, for example, she was home caring for children.

GREECE
Prenuptial agreements are enforceable in Greece.

HONG KONG
It is unclear to what extent prenuptial agreements are effective under Hong Kong law. Section 7 of Hong Kong’s Matrimonial Proceedings and Property Ordinance (“MPPO”) sets forth the relevant factors to be considered by a court in resolving the financial issues between divorcing spouses, These factors do not include an agreement between the parties. Certainly prenuptial agreements in Hong Kong are not required to be enforced but if both parties were represented by counsel when they were signed, and if the documents were signed long before the actual wedding date, they may then be of significant evidentiary significance.

IRELAND
In Ireland it appears that the courts are not required to enforce prenuptial agreements. The Family Law (Divorce) Act 1996 gives the Irish courts extremely wide discretion over the distribution of a divorcing couples assets. There is a dearth of authority on the issue of the extent to which a court in Ireland will take a prenuptial agreement into consideration in its distribution of assets and, in the absence of such authority, it is assumed that Irish courts will not consider (and will almost certainly refuse to automatically enforce) a prenuptial agreement. See, e.g. Geoffrey Shannon, Pre-Nuptial Agreements in Ireland, 2003 I.F.L. 132.

ITALY
Despite scarce case law on such agreements, it is possible that general principles of contract law will require that contracts made in preparation for an imminent divorce will be deemed null and void on public policy grounds. (Cass. civ., 11 agosto 1992, n., 9494, cit., above note 35: “È nulla, per illicità della causa, la transazione circa i rapporti economici che sia intervenuta tra i congiugi prima del procedimento di divorzio.”).

However, many jurists in Italy dispute this view. The difficulties caused by denying validity to such contracts is mitigated by the availability of the “separazione dei beni” agreement, which may be implemented prior to the marriage. This may cover only the assets acquired by either party during the marriage.

Prenuptial agreements entered into pursuant to foreign law which are valid under that law may be enforceable in Italy unless void on public policy grounds.

JAMAICA
It is believed that a case concerning prenuptial agreements has not yet been brought before the courts in Jamaica. Traditionally, Jamaica has followed English law.

JAPAN
In Japan, the Horei Law authorizes spouses who marry in Japan to choose which matrimonial law regime will govern their marriage, provided it is either the law of the country of either spouses nationality or habitual residence or, regarding immovables, the law of the location of the immovables. The Horei Law also specifies that prenuptial agreements are valid when made under the provisions of a foreign law, and sets forth a provision for registration of foreign prenuptial agreements in Japan.

Forum selection clauses are widely upheld by Japanese courts. Their validity in prenuptial agreements that preclude the jurisdiction of Japanese courts will likely be upheld if the matter in question is not within the exclusive jurisdiction of the Japanese courts, and if the court designated by the agreement would have jurisdiction over the matter in question, independently, under the law applicable in that forum.

LUXEMBURG
Luxemburg is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements.

NETHERLANDS
In the Netherlands, the parties may enter into a prenuptial agreement at the time of concluding their marriage (or,and during the marriage itself but in the latter case, the approval of the courts is required. They can thereby choose between one of three models described in the code, or regulate their property relations, with some limitations, as they wish. The prenuptial agreement has to take the form of a notarial deed and to be entered in a matrimonial property register. See Antokolskaia & Boele-Woelki, "Dutch Family Law in the 21st Century: Trend-Setting and Straggling behind at the Same Time," vol 6.4 Electronic Journal Of Comparative Law (Dec. 2002). The Netherlands is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements.

NEW ZEALAND
Prenuptial agreements have been permitted in New Zealand since enactment of the Matrimonial Property Act 1976.

The Property Relationships Amendment Act 2001 renamed the 1976 act as the Property (Relationships) Act 1976 and extended the property division regime to the division of the relationship property upon separation or death of married couples, partners in de facto relationships and partners in same sex relationships. The general rule is that of equal division of property brought into being during the relationship.

Section 21 of the Property (Relationships) Act 1976 expressly authorizes married and de facto couples to enter into opt-out agreements with respect to the status, ownership and division of their property, including future property. The agreements must conform to certain formalities.

Previously if such an agreement caused "injustice" it could be set aside. From 2001 such agreements cannot be set aside unless it is established that they cause "serious injustice." Accordingly, it is expected that not many agreements will be set-aside in the future. The purpose of the reform was to provide greater certainty as to the enforceability of contracting-out agreements.

The Act also contains (Sec. 7A(2)) somewhat unusual provisions concerning the applicability of foreign prenuptial agreements to “relationship property” as defined by New Zealand law, which require that prenuptial agreements drafted anywhere that involve a New Zealand connection should be drafted carefully.

NORWAY
The spouses may enter into binding agreements concerning maintenance and other matters before or after divorce or during divorce proceedings. See e.g. Norway’s Marriage Act, Section 83. A spouse may agree to renounce his or her future right to maintenance, as long as it is not with regard to a hypothetical future divorce.

The Brønnøysund Register Centre, Norway's central register authority, contains a Register of Marriage Settlements. That Register contains agreements between spouses regulating their assets/property in a different way than what automatically follows from marriage legislation. If, for example, spouses wish to register separation of property, they must establish a marriage settlement. If the marriage settlement is to confer protection against any creditors, it must be registered in the Register of Marriage Settlements. The same provisions apply to registered partners.

The Register of Marriage Settlements contains registered marriage settlements from 1928 up to the present. A total of 120,000 marriage settlements registered prior to 1981 have been registered in a manual index file, while registrations after 1981 can be searched in a database.

The Register of Marriage Settlements contains important information about the assets/property of spouses, and the principle that such information should be public applies to this register as well. To obtain information about a marriage settlement it is sufficient to submit the name, date of birth and address of one of the spouses. For electronic searches in the database of marriage settlements it is helpful to also provide the national identity number of one of the spouses.

PHILLPINES
The law of the Philippines allows spouses to execute and file with the Civil Registry a prenuptial Property Agreement (Surat Pernyataan Harta) which must be signed before a local notary public. Otherwise, Indonesian marriage law assumes joint ownership of property.

PORTUGAL
Prenuptial agreements are enforceable in Portugal. Portugal is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements.

RUSSIA
Prenuptial agreements are enforceable. See "Grounds For Divorce And Maintenance Between Former Spouses: Russia" by Dr. Masha Antokolskaia: http://www2.law.uu.nl/priv/cefl/Reports/pdf/Russia02.pdf.

SINGAPORE
Prenuptial agreements are treated "cautiously" in Singapore. The existence of an agreement concerning financial matters is "only one factor that the court is obliged to consider."

SOUTH AFRICA Prenuptial agreements in South Africa are enforceable.

SPAIN
Prenuptial agreements are enforceable in Spain, unless they should be detrimental to the children or seriously damaging to one of the spouses. Article 90, Spanish Civil Code. In recent years, there has been a large increase in the number of prenuptial agreements signed in Spain. See "Separate Property and Family Self-Determination in Catalonia: A Peaceful Model under a Radical Change?" by Albert Lamarca i Marqus: http://civil.udg.es/isfl/europeanregionalconference2003/texts/pdf/Lamarca.pdf

SWEDEN
Prenuptial agreements are enforceable in Sweden.

SWITZERLAND
Prenuptial agreements are enforceable in Switzerland. Prior to a marriage abroad, you must consult the private international law of the chosen country to find out the conditions to be met and the applicable judicial regulations. This informed outlook will help you choose a solution that best suits your needs. In fact, the applicable matrimonial regime will be the one you will have chosen (written agreement, marriage contract). You may choose between the law of the country in which both of you are residing and the law of the country of which one of you is a citizen. You may modify your selection at any time. In general, if you have not expressed a choice, the law of the country of residence applies. Micheloud & Cie 2003 http://switzerland.isyours.com/e/immigration/marriage/marrying_a_swiss_outside_of_switzerland.html

TAIWAN
Prenuptial agreements are enforceable in Taiwan.

THAILAND
Prenuptial agreements are enforceable in Thailand.

TURKEY
Prenuptial agreements are permitted in Turkey. There are three types of optional regimes: separation of assets, participation in separated assets and partnership in assets.

TURKEMENISTAN
It is reported that a foreign man who wishes to marry a Turkmen woman must first sign a prenuptial agreement with the proposed spouse based on a state-provided template.

U.S. VIRGIN ISLANDS
Prenuptial agreements are presumptively valid in the United States Virgin Islands.

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