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.
PRENUPTIAL AGREEMENT THAILAND
What is a Prenuptial Agreement ?
A prenuptial agreement is a contract that both spouses sign before entering into a legal marriage (not to be confused with a Buddhist marriage). This type of contract could also be called an Antenuptial or Premarital Agreement.
Normally, a prenuptial agreement provides a financial plan which can be managed through the course of a marriage or upon the dissolution of a marriage (example: divorce). For people with substantial assets and properties who wish to control the division of assets upon divorce, this legal document is very useful. It is also quite beneficial for future spouses who hold different nationalties.
Spouses may also sign a postnuptial agreement, which is made after their marriage is finalized. However, you should know that postnuptial agreements under Thai laws are not particularly strong, nor usual, due to section 1469 of the Civil and Commercial Code of Thailand (The “CCCT”). Moreover, a prenuptial agreement that is entered into in Thailand cannot be altered after the marriage, except by the authorization of a Thai court.
Thai laws place limitations on prenuptial agreements and you must follow Thai rules and regulations in order for the contract to be valid and enforceable. A Thai prenuptial agreement is required by law that:
- It is a written agreement signed by both parties;
- It is signed before or on the same day as the marriage registration under Thai Law;
- Two witnesses are present for the registration;
- The agreement is attached with the marriage certificate where the marriage is registered;
- If one of the spouses is under 20 years of age, he/she obtains consent from either parent(s), guardian, or legal representative.
- If a husband goes out with another lady, a wife can file for divorce;
- A clause asking that the full salary of the husband must be given to his wife;
- The contract shall be governed by laws outside of Thailand;
- A clause that specifies the debts of each spouses. For example: education-related debt will be the personal debt of a husband, or debt arising from the business of both spouses will be the personal debt of wife.
How to get a Prenuptial Agreement ?
While prenuptial agreements may be purchased online for a very low cost, these contracts are highly unlikely to be drafted in your best interest. Here is an example of a paid for download (800 Baht) of a prenuptial agreement in Thailand.
It is always much safer to hire an attorney to assist in drafting a contract of this kind of importance, especially if you have a significant amount of assets. If you have any question related to prenuptial agreements, do not hesitate to contact Isaan Lawyers, a firm that specialises in Family Law.