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International Prenuptial Agreements

The Law Office of Jeremy D. Morley handles international prenuptial agreements in New York and throughout the world, always acting with local counsel whenever appropriate.

We are highly experienced in advising wealthy and entrepreneurial clients and their families concerning such matters,as well as international couples who require particular protection in light of their international residences or business interests. 

We believe that it is always prudent for international couples who plan to marry to consider making an international prenuptial agreement, sometimes known as a premarital or antenuptial agreement or a marriage contract.

While there are many benefits of prenuptial agreements for conventional marriages, the benefits are generally multiplied when the parties are from different countries or have assets overseas or are living overseas. 

A key benefit for international people is that a prenuptial agreement may drastically simplify a future divorce that might otherwise be inordinately complex or confusing.

A prenuptial agreement for international couples is generally prudent and appropriate. 

But international prenuptial agreements are traps for the unwary or unknowing. They are extremely important to clients but must be handled with great care by knowledgeable and experienced international family law counsel.

Certainly it would be foolish to assume that a "prenup" that is valid in the place of the marriage or the place of current residency will be equally valid in other places which might have divorce jurisdiction in the future.

Many of our clients have significant net worth or are members of families with significant net worth.

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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. 

Serious issues arise as to whether a marital agreement entered into outside of Australia that does not conform in every respect to the provisions of the Australian Family Law Act will be enforceable in Australia. This can create momentously important issues when spouses who are parties to a non-Australian prenuptial or post-nuptial agreement relocate to Australia or if one spouse is of Australian nationality or there exists another basis for the Family Court of Australia to have jurisdiction over a potential divorce case.

AUSTRIA
Prenuptial agreements are generally permitted and enforced, subject to specified conditions. Austria's International Private Law Act provides that the formal requirements of a valid prenuptial agreement are governed by the law of the place where the agreement was made.  The law in Austria was liberalized somewhat by virtue of legislation effective January 1, 2010.  Now, a prenuptial agreement may include terms concerning the parties' matrimonial home, although courts have the power to overrule such terms if they deem it necessary to do so. 

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 likely follow the English approach, which now may give "decisive importance" to a prenuptial agreement. 

BRAZIL
Prenuptial agreements are enforceable in Brazil. See Article 256, II of the Civil Code. Brazilian courts will normally recognize a marriage contract that is valid under the law of the place of the marriage.  However, it is far more normal in Brazil for couple to choose a marital regime at the time they marry.  Four regimes are available.  The default regime is Comunhao Parcial whereby a) the premarital property of each spouse remains the personal property of such spouse together with any property purchased during the marriage using resources or rights which predate the marriage and b) property acquired after the marriage is owned jointly.  Other available regimes are Comunhao de Bens (community property), Separacao de Bens (separate property) and Participacao Final dos Aquestos (final partition of acquisitions, meaning that assets acquired during the marriage will be divided fairly). 

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 agreements must be in writing, signed by the parties and witnessed. They meay deal with a broad range of matters, including the ownership or division of property, support obligations, matters concerning the education and "moral training" of children (but not issues concerning custody of or access to children) and "any other matter." The legislation precludes spouses from opting out of those provisions in the Act that protect the rights of each spouse to the matrimonial home. 

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.

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. Most Canadian provinces provide for judicial oversight of prenuptial agreements but the standard of judicial review varies from province to province  For example:
-Ontario's Family Law Act permits a court to set aside a prenuptial agreement or any portion thereof if a party failed to disclose significant assets or liabilities, if a party did not understand the nature or consequences of the contract, or otherwise, in accordance with the law of contract.  Family Law Act, R.S.O. 1990, Ch.F.3., Sec. 56(4).
-Nova Scotia's Matrimonial Property Act allows for non-enforcement of a prenuptial agreement if any term is "unconscionable, unduly harsh on one party or fraudulent."  Matrimonial Property Act, R.S.N.S. 1989, Ch.275, Sec. 29. 
-Saskatchewan allows a court to redistribute property where an interspousal contract was unconscionable or grossly unfair at the time it was entered into.  Family Property Act, S.S. 1997, Ch.F-6.3, Sec.24(2).
-New Brunswick permits a court to disregard a provision of a prenuptial agreement if the spouse did not receive independent legal advice and application of the provision would be inequitable.  Marital Property Act, S.N.B. 1980, Ch. M-1.1, Sec. 41.
-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. The Supreme Court of Canada has confirmed that British Columbia's statute has a lower threshold for judicial intervention than do the provisions in other provinces.  Family Relations Act, R.S.B.C. 1996, Ch.128, Sec.65(1).   

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."

In 2003 the Chinese Supreme Court ruled that the types of property which could be the subject of a prenuptial agreement included a party's investment income, housing allowance, insurance, unemployment compensation, and income from intellectual property rights. 

DENMARK
In Denmark prenuptial agreements are permitted.  There is no requirement as to form or legal representation except that they must be in writing. They must be registered at a district court which then procures registration in a national registrar. 

However, there is a trend for courts in Denmark to make awards in derogation of the terms of the prenuptial agreement if the contractual terms are unfair, especially if the marriage was lenghty and the contract removed all of the spouses' capital from the matrimonial community of property. 

ENGLAND and WALES
The law governing prenuptial agreements in England and Wales is confusing and unsettled.  It requires careful attention.  See our article on Prenuptial Agreements in England

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
Specific provisions concerning prenuptial agreements are set forth in the French Civil Code. Code Civil Francais, art.1387 et seq.

While prenuptial agreements are permitted the parties do not have unlimited freedom of contract. The parties must appear together before a notaire prior to the wedding and select one of the regimes matrimoniaux offered by the French Civil Code. The parties can select their preferred property regime, choosing between several versions of the community property and other regimes, including separation de biens (separate property) and participation aux acquets. Whatever statutory regime is selected, it can be modified to accommodate their specific needs, but any modification is subject to specified public policy limits; there are many "primary regime" rules governing spousal relationships that the parties may not alter by contract.  Where parties choose not to enter into a pre-marital agreement, the default regime de communaute legale, a community property regime, governs the legal relationship of the spouses.

GERMANY
Prenuptial agreements are enforceable, subject to many limitations.  They must be executed before a notary. The German Burgerliches Gesetzbuch (BGB) provides that a set matrimonial property regime, that of community of accrued gains or "Zugewinngemeinschaft," applies between the spouses automatically upon marriage unless they select another arrangement by contract. The BGB also provides for two optional matrimonial property regimes, one of which is a system of exclusion of any community of property (Gutertrennung) and the other is a system of general community of property (Gutergemeinschaft). 

Germany's Federal Court of Justice has 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.

In Germany it is not permitted to provide in marriage contracts that they will be governed by foreign law. 

GREECE
Prenuptial agreements are enforceable in Greece. However, they are unusual in Greece, since the default marital regime is that of separation of assets (although a spouse that has contributed to an increase in the other spouse's property is entitled to a share of the increase).  See Article 1400 of the Greek Civil Code. 

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.

ISRAEL
See attached article

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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