International Prenuptial Agreements
When more than one country is involved
In many circumstances, prenuptial agreements have international implications. The following are examples of such situations:
• The prospective husband is a foreigner and the wife is from Thailand. Or any situation where the future wife and husband do not hold the same nationalty;
• They plan to marry and live in different jurisdictions;
• One or both future spouses have assets in more than one country.
In such cases, it is highly recommended to hire devoted attorneys that are familiar with the laws of your home country. In fact, they will have to consider the law of all jurisdictions in order to make the best agreement for you.
International agreements come with insecurity
Drafting a prenuptial agreement that is enforceable in all countries involved is highly complex because of differences in the respective laws of each country. This is commonly called "conflict of laws", when the laws of one country are not compatible with the laws of another. In such cases, a contract drafted by an inexperienced lawyer may be considered void by the Court, which could be devastating for the spouses’ respective interests. This is why studying and understanding the laws of each country is essential for protecting the intentions of future spouses.
There is only one International Treaty that addresses prenuptial agreements. "The Hague Convention on the Law Applicable to Matrimonial Property Regimes" specifically authorizes prenuptial agreements, which only a few countries have ratified. Thailand has not, and instead has adopted the Conflict of Laws Act.
Get in touch with Isaan Lawyers, if you plan to enter into an international prenuptial agreement.
What are the rules for where you are from?
Prenuptial agreements are called “financial agreements” in Australia. They first became valid and enforceable in 2000. However, they are subject to many limitations, including the requirement that future spouses obtain independant legal advice from an Australian legal practitionner. Without this condition, the Family Court will not be bound by the financial agreement.
Family laws in Canada differ depending on which province you come from, as do the requirements for a prenuptial agreement to be enforceable. In Alberta, both parties must obtain independant legal advice, and a certificate in regards to this fact must be attached to the contract. In Quebec, a prenuptial agreement must be signed before a notary.
A prenuptial agreement drafted in Thailand in accordance with any requirements of Thai law will be enforceable and valid in France, if one of the spouses (1) is a Thai national; (2) was living in Thailand before marriage; (3) will be living in Thailand after the marriage takes place; or (4) regarding real estate, the property is located in Thailand.
Germany does not recognize the law of foreign countries, even if it is the intention of the parties according to the agreement. A prenuptial agreement must have been executed before a notary. Also, the contract shall not disadvantage one party over the other, as it may be considered void by the court.
Until very recently, the United Kingdom systematicly refused to enforce any prenuptial agreement. We had to wait until 2010 to see the Supreme Court, in Radmacher case law, opening the door to the enforcement of such contracts. The UK also refuses to apply the chosen jurisdiction of the parties.
Prenuptial agreements are valid and enforceable throughout the country, but the requirements are based on the state where the contract is registered as each state has their own prenuptial laws. Moreover, some courts refuse to apply the laws of foreign countries, even if there is a jurisdiction clause in the contract.
Isaan Lawyers has worked with legal representatives from many different jurisdictions and drafted numerous legal agreements and contracts that are valid in Australia, Canada, France, Belgium, United Kingdom, Germany, and United States.