
Prenuptial agreements are especially recommended
in the case of international marriages and
marriages where the spouses expect to reside
internationally.
It is important when drafting a prenuptial agreement
on behalf of people who have different nationalities, or who are or may
become expatriates, or who maintain property in various jurisdictions,
to consider the impact of such different jurisdictions in the event of a
divorce.
All of the usual reasons that make us recommend a
prenuptial agreement for couples who are from the same jurisdiction
usually apply even more to international marriages and expat marriages.
There is usually no good reason not to enter into a prenuptial agreement
and there are frequently very good reasons to do so. These reasons are
magnified in the case of international relationships.
International prenuptial agreements may also be used
as estate planning devices.
One term of international prenuptial agreements that
is often of critical significance is the choice of law clause. It may be
possible to select the governing law in a prenuptial agreement, although
this must be carefully evaluated.
It must
be recognized
that not all jurisdictions will allow pre-nuptial agreements to be
enforced and that the requirements for prenuptial agreements to be valid
vary also among international jurisdictions and even, to some extent,
within the states of the U.S.
It is quite difficult
to find attorneys who are attuned to considering the laws of different
jurisdictions and who are experienced in working with local attorneys to
craft prenuptial agreements that will work best for international
spouses.
We are extremely experienced in drafting international
prenuptial agreements.
It is generally just not good
enough
for a lawyer to
draft a prenuptial agreement for an international client that
merely comports with the local law.
However, this
presents an almost impossible task for the family lawyer.
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How can
local counsel predict where a client or a client’s spouse
will live in the future?
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How
can local
counsel be knowledgeable about the laws of all countries?
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Should
counsel recommend that the client retain counsel in every
country around the world?
That’s where
we, as international family law counsel, come in. While we are
not knowledgeable about the laws of all jurisdictions, we do
have huge international experience, particularly in helping
lawyers and clients establish suitable contractual structures to
govern international personal relationships.
Law
firms and clients around the world
contact us for assistance in this complex area.
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Mirror Prenuptial Agreements
We frequently
recommend mirror prenuptial agreements for people with international
domiciles, citizenship or businesses.
Love doesn’t always
last but the consequences of failed marriages can endure for a lifetime.
The problems can be multiplied when the people and/or the assets are
international.
In the context of international prenuptial agreements, a mirror
agreement is one that is drafted in one jurisdiction to follow the terms
of an agreement that applies in another jurisdiction.
The purpose is to maximize the chances of enforcement of the agreed
terms in multiple jurisdictions.
Thus if H and W live in London but one of them has a New York domicile,
they must be advised that prenuptial agreements are not enforceable in
England.
An English prenuptial agreement will be given some weight – sometimes a
lot, sometimes a little -- in an English court, but that’s all. Whether
an English agreement will be enforced in the U.S. is uncertain, since an
American court may well determine that its validity is governed by
English law since it was negotiated in England and that is where the
parties were most closely connected at the time of execution.
A New York prenuptial agreement may not be enforced in the U.K.,
Singapore, Hong Kong or some other jurisdictions.
If H and W believe that they might move to the U.S. in the future, it
makes sense to have two agreements, one under English law and the other
under the law of the American state with which they are most closely
connected.
Another benefit of having a New York agreement in these circumstances is
that New York is among the toughest jurisdictions in the world for
enforceability. New York lawyers will insist that there be full
disclosure of assets; that the terms be fair to both parties; and that
both sides be represented by independent counsel. This means that a
well-drafted New York agreement may well survive in any American state
and in many other jurisdictions around the world.
Since international people can surely not predict with any certainty
where they will live in the future, this provides significant benefits.
Of course, to provide greater security to the party whose assets are
being protected it is advisable to seek advice from matrimonial counsel
in every jurisdiction in which a client says that he might live in the
future. In one case involving a famous international globetrotter we put
together a global team of divorce lawyers to cover as many bases as
possible.
It is important to provide for one of the agreements to be superior to
the other. The primary agreement should normally be the one that is the
jurisdiction which provides the greater chance of enforceability. Thus,
between an English and a New York agreement, it is normally preferable
to provide that the New York agreement will have priority. The English
agreement should provide that it will come into play only if the New
York agreement is for any reason unenforceable. |