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. 

• How can local counsel predict where a client or a client’s spouse will live in the future?

• How can local counsel be knowledgeable about the laws of all countries?

• 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.

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.