Prenuptial Agreements Around the World
By Jeremy D. Morley
When internationally connected people are planning to marry and are contemplating a prenuptial agreement, they must consider the international implications of their proposed arrangements.
We draft prenuptial agreements for international people, often acting in collaboration with lawyers in other countries. We usually recommend an initial telephone conference with Mr. Morley to review the relevant issues and potential steps to take.
The information below is for informational purposes only. It must be checked by legal counsel in the local jurisdiction before being acted on.
PRENUPTIAL AGREEMENTS IN 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 in Australia 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 or if a party engaged in unconscionable conduct when making the agreement, such as where one spouse was at a disadvantage and the agreement is contrary to good conscience.
Serious issues arise as to whether a marital agreement entered into outside 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.
PRENUPTIAL AGREEMENTS IN 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.
PRENUPTIAL AGREEMENTS IN THE 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. Prenuptial agreements are most often not enforceable in the Bahamas, but courts might take them into account in determining the intention of the parties. Bahamian courts will view a prenuptial agreement as a mere persuasive consideration, but this view has shifted following the anonymized judgment (M v. F) in 2011 by the Supreme Court that ruled that a) the parties had entered into the agreement freely, and b) that it would not be “unfair” to hold the parties to the agreement. In general, the Bahamas will follow the English approach, and the above case mirrored the 2010 English Supreme Court case of Radmacher v. Granatino, which established that courts “should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” Hence, uncertainty remains as to whether a prenuptial agreement will be fully enforceable in the Bahamas, as a court there may intervene and alter terms under the guise of fairness.
PRENUPTIAL AGREEMENTS IN BELGIUM
Under Belgian law, a marriage contract is expressly authorized by law as a formal deed in which a future husband and wife set out any terms of their marriage as they see fit, but within the confines of the legal rules. They may not deviate from the rules governing public order and common decency, from the rules setting out the respective rights and duties of the husband and wife, or the rules on managing the communal estate and assets. The contact must be drawn up prior to marriage by a Belgian notary. Either party who is unable to attend may be represented by a proxy by means of a special power of attorney executed before a notary. The notary has a duty to be objective as well as having the duty to fully inform the parties regarding the terms and consequences of the agreement. The notary may be liable for damages if the agreement is unbalanced or if there may be a conflict of interests. The marriage certificate must provide the following information: the date of the contract, the name and address of the notary who drew up the contract, and the type of marriage contract. Failing this, any clauses derogating from the statutory system may not be applied to third parties who engaged in contractual relationships with the husband and wife without knowledge of their marriage contract. There is no requirement to disclose assets as to a premarital agreement, but one spouse may request disclosure of all movable and immovable property, as well as all debts, of the other spouse for a post-marital agreement that overrides a previous contract pursuant to the Belgian Civil Code, Article 1394, paragraph 2.
Any transfer of real estate in connection with a marriage contract must be registered with the mortgage registration office. All marriage contracts must be registered with the Central Register of Marriage Contracts. If an agreement deviates from the proportional distribution rule or provides for the appointment of an heir, it must also be registered with the Central Register of Last Wills and Testaments. If one spouse is a merchant, within one month after the marriage contract is drawn up, the marriage certificate must be sent to the clerk of the Commercial Court in whose jurisdiction the spouse in question is listed in the trade register. If there is no marriage contract, the spouses are governed by the statutory prenuptial system. The husband and wife may change their marriage contract during their marriage.
PRENUPTIAL AGREEMENTS IN BRAZIL
Prenuptial agreements are normally 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 couples to choose a marital regime at the time they marry. Four regimes are available. The default regime is Comunhao Parcialwhereby (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 Ruling (separate property) and ParticipacaoFinal dos Aquestos (final partition of acquisitions, meaning that assets acquired during the marriage will be divided fairly).
PRENUPTIAL AGREEMENTS IN 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 may 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 of spouses 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:
a. If the provision for support or the waiver of the right to support results in unconscionable circumstances;
b. 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
c. 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 agreement 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.5 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).
PRENUPTIAL AGREEMENTS IN CAYMAN ISLANDS It is expected that the law of the Caymans Islands concerning prenuptial agreements is that of English law, as to which the Radmacher case is the leading authority. New legislation that would expressly authorize prenuptial agreements has been prepared by the Cayman Law Reform Commission.
PRENUPTIAL AGREEMENTS IN 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.
PRENUPTIAL AGREEMENTS IN 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 register.
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 lengthy and the contract removed all of the spouses' capital from the matrimonial community of property.
PRENUPTIAL AGREEMENTS IN 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.
PRENUPTIAL AGREEMENTS IN ESTONIA
A marital property contract may be concluded prior to marriage or during marriage. Estonia Family Law Act §§ 8–13. A marital property contract may specify which property belonging to a spouse before the marriage remains the separate property of the spouse and which property becomes joint property of the spouses, and which of the property acquired or to be acquired during the marriage is joint property and which is separate property. A marital property contract may also specify how to possess, use and dispose of joint property of the spouses, how to divide joint property of the spouses, the mutual maintenance duties of the spouses during the marriage and upon termination of the marriage, and other mutual proprietary rights and obligations of the spouses that they consider necessary.
Marital property contracts are entered in the marital property contract register. A marital property contract not entered in the register is valid in the relationship of spouses when it is notarized. The proprietary rights of a spouse arising from a marital property contract are valid with respect to third persons if an entry concerning the marital property contract is made in the marital property contract register before the claim of the third person arises. The marital property contract register is maintained pursuant to procedure provided by law in a land registry of a court.
PRENUPTIAL AGREEMENTS IN FINLAND
Prenuptial agreements are enforceable in Finland. A relatively 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. Formal requirements for prenuptial agreements in Finland include: the agreement must be made in writing, both parties must consent to the terms within, it must be dated and signed by both parties, the agreement must be witnessed by two disinterested persons, and it must be submitted to the Local Register Office (the Maistraatti). The agreement will is not valid until it has been formally registered.
PRENUPTIAL AGREEMENTS IN FRANCE
Specific provisions concerning prenuptial agreement are set forth in the French Civil Code. Code civil (C. civ.) (Civil Code) Arts. 1387 et seq. (Fr.).
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.
There is no duty to disclose either assets or debts prior to entering into a prenuptial agreement in France. Typically, the parties will have the agreement drawn up by a notaire (who has a duty to inform and advise the parties as to the agreement) and will then present the agreement to the registrar at the time of the wedding, the effect of which will be to bind third parties to the agreement.
PRENUPTIAL AGREEMENTS IN GERMANY
Prenuptial agreements are enforceable in Germany, 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 may 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.
PRENUPTIAL AGREEMENTS IN 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 who has contributed to an increase in the other spouse's property in entitled to a share of the increase). Article 1400 of the Greek Civil Code. Upon marriage, spouses may singly elect a regime of community property as expressly authorized in the Civil Code.
PRENUPTIAL AGREEMENTS IN HONG KONG
Prenuptial agreements for international people based in Hong Kong may be tremendously useful but must be carefully drafted by counsel with international experience and knowledge.
It should be noted that nuptial agreements between the parties are not included in the list of factors that the Matrimonial Proceedings and Property Ordinance directs a court in Hong Kong to consider in determining the financial consequences of a divorce.
Moreover, the potential and practical effect of both prenuptial and postnuptial agreements under Hong Kong law is quite uncertain, since they are to be considered under the subjective and ambiguous standard of “fairness.”
Nuptial agreements were previously considered at common law to be contrary to public policy because they ousted the jurisdiction of the court to grant ancillary relief. The modern English law on nuptial agreements dates from the 2008 ruling of the Judicial Committee of the Privy Council in MacLeod v. MacLeod,  UKPC 64. In that case, the Court decided in favor of the husband (my client) that a post nuptial agreement was valid, binding and could be enforced, but it insisted that courts retained the power to modify such agreements whenever necessary or appropriate to protect the weaker spouse.
In 2011, in the landmark case of Radmacher v. Granatino,  UKSC 42,  1 A.C. 534, the U.K. Supreme Court extended the MacLeod ruling to prenuptial agreements. Again, it ruled that nuptial agreements could be enforced, but only subject to the overriding standard of “fairness.” A prenuptial agreement might have “decisive weight” but it must always be reviewed on a case-by-case basis for fairness.
In 2014, the Hong Kong Court of Final Appeal ruled that the Radmacher ruling now represented the law in Hong Kong and stated that this applied to postnuptial, as well as prenuptial agreements. The case concerned the impact in Hong Kong of a German prenuptial agreement between German nationals. The Hong Kong court held that the existence of the German prenuptial agreement and also a German separation agreement was plainly a factor to consider on the husband's application to stay the Hong Kong divorce proceedings on the ground of forum non conveniens. SPH v. SA  HKCFA 56.
But how the rule of “fairness” would be applied was not explained.
Indeed, the fairness standard makes it almost impossible to predict the impact that a prenuptial or postnuptial agreement will have on a future divorce case in Hong Kong.
Thus, the 2019 case of LCYP v JEK  HKCFI 1588 vividly demonstrated that fairness is in the eye of the beholder. The court purported to uphold the validity of a New Jersey prenuptial agreement entered into after negotiations, representation by separate and independent counsel and full financial disclosure. Yet it held that, because the parties' circumstances had changed significantly during the marriage in that the husband's business had flourished, the prenuptial agreement was now “unfair” and the court was now required to make a financial award sufficient to maintain the wife for life at a most affluent level, notwithstanding the prenuptial agreement.
The stark difference between the way that the courts in New Jersey would have treated the prenuptial agreement as compared to that of the Hong Kong courts underscores the fact that forum shopping by international people in contemplation of divorce can yield extremely significant results.
Our office has worked on several U.S. – Hong Kong prenuptial agreements. The husband in LCYP was our client. We work globally on divorce forum strategizing. We always collaborate with local counsel in all jurisdictions as appropriate.
PRENUPTIAL AGREEMENTS IN INDIA
India has no law on prenuptial or post nuptial agreements. Such agreements are not common in India and are contrary to Indian customs and views about marriage. Nevertheless, the global publicity about celebrity prenuptial agreements is encouraging more affluent people to consider the idea in India.
There appears to be no significant case law in India on the topic of prenups or postnups. Critically, the Supreme Court of India -- which is vested with extremely broad power to do justice between the parties and which has been quite active in matters concerning the grounds for divorce -- has taken no stand on the matter of prenuptial agreements.
It is therefore essential to understand that while prenuptial agreements might be a valuable way for parties in India to express their intention concerning the nature of their financial relationship, it is not possible to assure -- or even to expect -- that such agreed terms will be upheld in an Indian court.
International clients should also anticipate that prenuptial and post nuptial agreements entered into while they reside outside India will likely not be enforced if either of them should initiate a divorce case in an Indian court.
PRENUPTIAL AGREEMENTS IN INDONESIA
The law of Indonesia 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.
PRENUPTIAL AGREEMENTS IN 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.
In one case the Irish court stated that where the parties were well educated, intelligent persons who received independent legal advice before entering a separation agreement and the agreement was of recent date, the courts should be slow to make any radical changes to such an agreement. M.G. v. M.G. (Circuit Family Court Dublin July 25, 2000).
In 2007 the Minister for Justice issued a report recommending that prenuptial agreements should be used as a guide when a court is deciding on assets division in a divorce. As a result of the report, the Department of Justice began drafting a new Family Law Bill that would allow for prenuptial agreements to be recognized under Irish law.
In future cases, the Irish courts are likely to be influenced by the 2010 UK Supreme Court ruling in Radmacher v. Granatino that prenuptial agreements should be applied unless they produce unfairness.
PRENUPTIAL AGREEMENTS IN ISRAEL
Prenuptial agreements are generally enforceable in Israel, if authorized before a notary, a marriage registrar, or by the family court or the rabbinical court.
PRENUPTIAL AGREEMENTS IN ITALY
The Italian codice civile provides that the default matrimonial regime is the communione legale but it also authorizes an optional system of separazione dei beni. General community of property is not included as a statutory optional system. The separazione dei beni can be modified in specified ways such as by electing a fondo patrimoniale(capital fund). However, there may be no derogation from the “primary regime” and there are statutory rules that no variation may be made in the power to manage and administer the assets and from the rule that the division and partition of the community must be made in equal portions.
The difficulty 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.
Prenuptial agreements in Italy must be executed before a notary, except that if the spouses elect the regime of total exclusion of community of property, the spouses can make a declaration at the time of their marriage before the person who solemnizes their marriage, which must then be annotated on the marriage certificate.
Reference to foreign law is permitted only if specified rules are complied with including a requirement that the contents of the foreign law be expressly set out in the contract.
PRENUPTIAL AGREEMENTS IN JAMAICA
Jamaica permits prenuptial agreements if they are in writing and witnessed as provided by law, and if each party was represented by independent counsel, unless the court is satisfied that it would be unjust to give effect to the agreement. Family Property (Rights of Spouses) Act, Sec. 10 (2003) (Jam.).
PRENUPTIAL AGREEMENTS IN JAPAN
Prenuptial agreements are not common in Japan. They have never been a part of Japanese culture, even for the upper classes. The Act on the General Rules of Application of Laws (Ho no tekiyo ni kansuru tsusoku-ho) 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 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.
The Japanese Civil Code also contains important provisions that authorize prenuptial agreements. Article 755 provides that, “The property rights and duties of a husband and wife shall be prescribed by the following subsections, unless they entered into a contract setting forth otherwise, regarding their property before giving notification of the marriage.” Article 756 provides in essence that registration is needed in order to bind third parties but not in order to bind the spouses themselves.
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 (a) the matter in question is not within the exclusive jurisdiction of the Japanese courts and (b) the court designated by the agreement would have jurisdiction over the matter in question, independently, under the law applicable in that forum.
While a prenuptial agreement may determine the choice of the marital regime it is uncertain whether terms concerning other matters would be upheld in Japan. The issue often arises with regard to terms that purport to reduce or eliminate future alimony (spousal maintenance) obligations. Alimony per se cannot be awarded in Japan but clients often want a Japanese contract to handle the issue of alimony in the event that a divorce is sought in a court outside Japan. Similar questions arise as to terms designed to limit the inherent power of a court in Japan to make awards to protect the financial wellbeing of a spouse.
It seems to be well accepted in Japan that any prenuptial agreement will be subject to potential review for compliance with Japanese public policy.
PRENUPTIAL AGREEMENTS IN KOREA
The Korean Civil Code expressly authorizes premarital agreements concerning the division of property between marrying spouses. The Code provides that, unless there is an agreement concerning the division of property, the Family Court shall “determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances.” Korea Civil Code, Art. 839-2(1). A prenuptial agreement may not be altered during the marriage except upon the express approval of a court. (Art. 829(2).
PRENUPTIAL AGREEMENTS IN LUXEMBURG
Luxemburg is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements.
PRENUPTIAL AGREEMENTS IN MALAYSIA
Prenuptial agreements are not authorized in the law of Malaysia. The governing statute-- the Law Reform (Marriage and Divorce) Act 1976 – provides the authorization for Malaysian courts to divide the matrimonial assets of divorcing parties (Section 76) and to assess maintenance against a husband in favor of a wife (Section 78), but does not contain any language that would appear to permit the consideration of agreements between the spouses.
PRENUPTIAL AGREEMENTS IN THE NETHERLANDS
In the Netherlands, the parties may enter into a prenuptial agreement at the time of concluding their marriage (or 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 must take the form of a notarial deed and be entered in a matrimonial property register. A civil notary does have an affirmative duty to inform the parties about the agreement and its potential consequences. Neglecting this duty can result in either disciplinary action or compensatory damages.
The Netherlands is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements. Since The Netherlands still has an absolute community of property regime upon marriage, whereby all property, whether acquired before or after marriage, automatically becomes communally owned by both spouses, it is often extremely important to consider a prenuptial agreement in this country. A common term of such a prenuptial agreement is to provide that all property will be separately owned except for the marital residence and its contents, which will be communally owned. Spouses do have a duty of disclosure of both assets and liabilities prior to entering into a prenuptial agreement.
PRENUPTIAL AGREEMENTS IN 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.
PRENUPTIAL AGREEMENTS IN 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.
PRENUPTIAL AGREEMENTS IN THE PHILIPPINES
Although divorce is not allowed under Philippine law, prenuptial agreements are permissible to “fix the property relations during the marriage within the limits provided by this Code.”
Article 1 of the Family Code of the Philippines provides that, “Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.” The Family Code, otherwise known as Executive Order No. 209, took effect in 1988.
The Family Code provides that a regime of absolute community of property applies automatically upon marriage. However, that regime is subordinate to the terms of a valid prenuptial agreement.
Thus the Code specifies that “Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.” Article 91. Certain specified items are excluded from the default regime of community property but the burden is on the party asserting that an item is excluded to prove that such is the case. (Articles 92 and 93).
A prenuptial agreement may contain such terms as the parties wish to govern their affairs. However, the Family Code provides for certain specific regimes that the parties may choose to adopt, these being:
The regime of Conjugal Partnership of Gains, whereby the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements; and
The regime of Separation of Property, whereby each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other, and which may refer to present or future property or both and which may be total or partial.
Prenuptial agreements must be entered into voluntarily. They should be in writing. They can be set aside for lack of consent, fraud, coercion, mistake, undue influence or bad faith. In order to be effective against third persons, they must be notarized and recorded in the Registry of Property for the Protection of Creditors and in the local civil registry.
A prenuptial agreement may stipulate as to what law will determine the parties' property relations. Absent such a choice of law clause the law of the Philippines will govern such matters if one spouse is a Filipino citizen. However, the laws of the Philippines will not apply to property located outside the Philippines. Article 16 of the Civil Code of the Philippines provides that, "Real property as well as personal property is subject to the law of the country where it is situated."
PRENUPTIAL AGREEMENTS IN 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.
PRENUPTIAL AGREEMENTS IN RUSSIA
Prenuptial agreements are generally enforceable in Russia. Family Code, No. 223-FZ, 1995, Arts. 41, 42 (Russ.).
The Russian Civil Code provides that any contract, including a prenuptial agreement, can be declared void if it is not written in the proper form, if it contains content not allowed by law, if one of the parties was without the power to sign the contract, if a party was without competence to enter into the contract, or if a party signed the contract by reason of false pretenses, fraud, or duress. Civil Code, 1995, Chap. 9. (Russ.).
The Russian Family Code provides the court with a broad power to invalidate some or all of a prenuptial agreement, in whole or in part, if it places a party in an “extremely unfavorable position” such as by adversely affecting the party's material well being. Family Code, No. 223-FZ, 1995, Arts. 43, 44 (Russ.).
PRENUPTIAL AGREEMENTS IN SCOTLAND
Prenuptial agreements are authorized by Scottish law.
Section 9 (1) of the Family Law (Scotland) Act 1985 provides the principles that a court in Scotland must apply when deciding what order for financial provision, if any, to make upon a divorce. Such principles include the principle that “(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage.”
Section 10 (1) provides that, “ In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property shall be taken to be shared fairly between the parties to the marriage when it is shared equally or in such other proportions as are justified by special circumstances.”
Section 10 (6) provides that, “In subsection (1) above “special circumstances”, without prejudice to the generality of the words, may include--
(a) the terms of any agreement between the parties on the ownership or division of any of the matrimonial property.”
And Section 16 (1), entitled “Agreements on financial provision” provides that, “Where the parties to a marriage have entered into an agreement as to financial provision to be made on divorce, the court may make an order setting aside or varying…. (b) the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into.”
In practice, pre-nuptial agreements in Scotland are typically used to “ring fence” certain assets, in order to exclude them from the statutory definition of “matrimonial property.” Comprehensive prenuptial agreements that are designed to override the principles otherwise governing the division of matrimonial property on divorce are relatively unusual. Nonetheless prenuptial agreements are sometimes used in Scotland not merely to make provision for the division of property upon divorce but also to deal with rights to aliment (spousal support) after the breakdown of marriage and rights of succession in the event of death.
Prenuptial agreements in Scotland are sometimes said to be considered to be contracts, just like any other contracts, which are enforceable subject to the same kind of defenses that might apply to conventional contracts.
However, Section 16 of the Act creates a special exception for prenuptial agreements that were “not fair and reasonable at the time … entered into.” They must be entered into with care.
PRENUPTIAL AGREEMENTS IN SINGAPORE
Prenuptial agreements are usually treated “cautiously” in Singapore. The existence of an agreement concerning financial matters is only one factor that the courts are obliged to consider. However, the Singapore Court of Appeal has ruled that it will normally enforce foreign prenuptial agreements that are valid under the foreign law in question, subject to public policy considerations. TQ v. TR,  SGCA 6 (Feb. 3, 2009).
Traditionally Singapore followed the English rule that prenuptial agreements are unenforceable and, as in England, that ancient and much discredited rule had given way to a principle that prenuptial agreements may be considered in a court's determination of what is a fair result, along with a host of other factors. However, in its 2009 ruling the Singapore Court of Appeal has held that it will normally enforce foreign prenuptial agreements.
The case concerned a prenuptial agreement between a Dutch husband and a Swedish wife entered into in the Netherlands where the parties were married before returning to their residence in London. This agreement was prepared by a Dutch civil law notary in the Netherlands. After six years of marriage the couple moved to Singapore with their children. The agreement provided that “[t]here shall be no community of matrimonial assets whatsoever between the spouses” and that “[t]he marital property regime in force between them shall be governed by Netherlands law.”
The court determined that the Singapore courts should accord “significant (even critical) weight” to the terms of a prenuptial agreement between foreign nationals that is governed by and valid according to a foreign law, unless its terms violate the public policy of Singapore.
It is also important to note that the court confirmed that the validity of a prenuptial agreement should be governed by its “proper” law, as with any other contract. The proper law is to be determined by (in order of descending priority): (a) the express choice of the parties; (b) the implied choice of the parties; and (c) in the absence of any express or implied choice of law, by ascertaining the system of law with which the agreement has the closest and most real connection, which is presumed to be the law of the matrimonial domicile unless rebutted.
In 2011 the Singapore High refused to enforce a Deed of Separation entered into in Singapore on the ground that the husband had violated an obligation to make full disclosure of his assets and expectancies before the parties had signed the Deed. The Court explained that the decision in TQ v TR held that an agreement between parties “cannot be enforced in and of itself”. The terms of an agreement would only constitute one of the factors that the court should take into account in arriving at its decision as to the proportions in which the matrimonial assets concerned are to be distributed. Even if prima facie the court would not lightly set aside an agreement between parties, the court has liberty to decide that an agreement ought not to apply if the court does not consider it just and equitable.
Thus, the rule in Singapore is that financial agreements between spouses (or spouses-to-be), while they might be afforded decisive weight in appropriate circumstances, are always subject to judicial scrutiny. Section 112 of the Singapore Women's Charter requires the Singapore courts to order the division of matrimonial assets “in such proportions as the court thinks just and equitable”. Thus, although financial agreements are most significant there are not mechanically enforceable in Singapore. AFS v AFU,  SGHC 52.
It seems most likely that the Singapore courts will be influenced significantly by cases to be handed down in England under the authority of the English Supreme Court case of Radmacher.
PRENUPTIAL AGREEMENTS IN SOUTH AFRICA
Prenuptial agreements in South Africa are enforceable. Upon a marriage in South Africa the spouses are automatically subjected to a system of complete community of property, including their premarital property, unless they opt out by signing an antenuptial agreement. If they sign a properly drafted and notarized agreement that simply provides for an opt-out from community property they will automatically be deemed to have selected the system of accrual. Under the accrual system whichever spouse's estate has increased less during the marriage than the other's estate will have a claim for a portion, usually one-half, of the difference between the accruals of the respective estates. If instead they expressly exclude in an antenuptial agreement both the community property and the accrual systems they are basically free to choose any other terms as long as they do not violate public policy.
PRENUPTIAL AGREEMENTS IN 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.
PRENUPTIAL AGREEMENTS IN SWEDEN
Prenuptial agreements are generally enforced in Sweden. 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 register. Swedish courts have the power to make an award in derogation of the prenuptial agreement in order to avoid unreasonableness but if the spouses entered into the contract with full knowledge of what they were doing that power is quite limited.
Spouses may include a provision choosing the law of the country that is to govern their property relations, provided they choose the law of a country in which at least one of them was domiciled or a citizen at the time of the contract. Act of 1990 on International Questions concerning Property Relations between Spouses, sec. 272, para. 3 (1990) (Swed.).
Absent such a choice of law, the prenuptial agreement is governed by the law of the state in which the spouses established their domicile at the time of their marriage. Act of 1990 on International Questions concerning Property Relations between Spouses, sec. 272, para. 4(1) (1990) (Swed.).
A prenuptial agreement will be enforced in Sweden if it was entered into in compliance with the law that governed the spouses' property relations at the time of the agreement. Act of 1990 on International Questions concerning Property Relations between Spouses, sec. 272, para. 5 (1990) (Swed.).
PRENUPTIAL AGREEMENTS IN SWITZERLAND
Prenuptial and postnuptial agreements are binding under Swiss law provided they fulfill certain statutory requirements. They must be entered into by means of a “notarial deed.” Art. 184, Swiss Civil Code. The notary has a duty to ascertain that the contract is based on the free will of the parties and is in accordance with the law. The notary also has to explain to the parties their current legal status and the changes that the marital contract will provide, ensure that the parties understand the meaning of the contract and ensure that the contractual provisions are in accordance with the wishes of the parties. However, if the notary does not fulfill such obligations, the contract remains valid, although the notary may be sued for damages. The registration of marital agreements was abolished in 1988.
Prenuptial agreements enter into force upon the solemnization of the marriage. Art. 182, Swiss Civil Code. Spouses may enter into a marital agreement or modify or annul a prenuptial agreement at any time during their marriage.
Full disclosure of the spouses' assets and debts is not necessary. However, the general rules of contract law apply, so that a marriage contract might be invalidated by reason of fundamental mistake, fraudulent misrepresentation or duress or the general rule prohibiting an abuse of a right may apply. Arts 23 et seq. and 28 et seq. Swiss Code of Obligations; Art. 2 para. 2 Swiss Civil Code.
A marital contract containing provisions regarding the matrimonial property regime, and that does not provide for the other effects of a divorce, qualifies as a marital contract, and is not subject to judicial review for fairness. On the other hand, an agreement intending to lead to a divorce is dealt with differently from a marriage contract and is subject to judicial control. Art. 140, Swiss Civil Code.
The spouses may only choose, change or modify their property regime within the boundaries of the Swiss law. Art. 182 (2), Swiss Civil Code.They may choose between the statutory property regimes. Whichever regime they choose may only be modified in specifically authorized ways and to a specifically authorized extent. The spouses cannot create their own regime. However, they may regulate certain issues regarding property law by a simple written contract in writing, but such an agreement does not qualify as a marriage contract.
Thus, under the property regime of participation in acquisitions, the spouses may deviate from the rules on the participation in the increased value of an asset in the case where one spouse has invested in the other's assets. Art. 206 (3), Swiss Civil Code.
Under participation in acquisitions, the spouses may designate business assets that would otherwise belong to the marital property as separate property; they may also assign revenue generated from separate property to the separate property. Art. 199, Swiss Civil Code.
Under community of property, the spouses may modify the assets that belong to the common property. Art. 223 Swiss Civil Code.
PRENUPTIAL AGREEMENTS IN TAIWAN
Prenuptial agreements are enforceable in Taiwan. Thus, Article 1004 of the Civil Code provides that, “The husband and the wife may, before or after getting married, adopt by contract one of the contractual regimes provided by this Code as their matrimonial property regime
PRENUPTIAL AGREEMENTS IN THAILAND
Prenuptial agreements are generally enforced in Thailand. Section 1465 of the Thai Civil and Commercial Code provides that if the parties have concluded a prenuptial agreement, the provisions of Chapter IV of the Code will govern their respective property rights. It also provides that any provision of any such agreement is void if it is contrary to “public order or good morals” or if the assets are to be governed by foreign law. Section 1466 provides that a prenuptial agreement is void if not made in writing and signed by both spouses and by at least two witnesses and entered in or annexed to the Marriage Register at the time of marriage registration. Once entered into, a prenuptial agreement cannot be modified without court approval
PRENUPTIAL AGREEMENTS IN 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.
PRENUPTIAL AGREEMENTS IN 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.
PRENUPTIAL AGREEMENTS IN THE U.S. VIRGIN ISLANDS
Prenuptial agreements are presumptively valid in the United States Virgin Islands.