Why lawyers representing international clients who plan to marry should always consider the international ramifications of prenuptial agreements across borders.
By Evie Jeang, International Family Lawyer
Prenuptial agreements are a complicated marriage of contract and matrimonial law. Considerations regarding the terms and enforceability of such agreements can vary, resulting in differing interpretations and judgments on a prenuptial agreement from what may have been expected by one or both of the spouses. This subject is only made more complicated by potentially conflicting international laws. Lawyers representing international clients who plan to marry should always consider the international ramifications of any proposed agreement.
Enforcing Prenuptial Agreements Across Borders
Domestically, spouses may face challenges enforcing a prenuptial agreement in different states due to conflicts of laws from each state. As the world becomes increasingly connected, it is not uncommon for one or both parties of a marriage to be a national of one country, live in another, and own property in a third country. Furthermore, even if a judgment can be obtained in one country, the judgment may potentially have no effect on a spouse’s rights to property located in another jurisdiction.
U.S. courts have been willing to uphold the prenuptial law of a foreign jurisdiction if the prenuptial agreement was unequivocally entered into and signed in that jurisdiction. The spouse seeking enforcement of the prenuptial agreement must show that the agreement was “freely negotiated.” However, beyond this, courts may differ on applying weight to other factors supporting the enforceability of the prenuptial agreement, such as whether the marriage ceremony took place in the country, or whether enforcement of that country’s marital laws seems inappropriate for one spouse (for example, if he or she is not a national of that country).
Family lawyers advising future spouses on their prenuptial need to undertake steps to ensure that evidence is documented to prove that the factors exist to support the enforceability of the prenuptial agreement. Often, at the time of drafting and executing the agreement, neither spouse wants to anticipate actually enforcing the agreement, much less determining in which jurisdiction the prenuptial agreement will ultimately be decided. Depending on the facts and circumstances of each case, the jurisdiction to ultimately decide on a prenuptial agreement may be the jurisdiction where either spouse is currently residing, domiciled, doing business, or nationalized, or perhaps where either spouse was previously residing, domiciled, doing business, or nationalized. At the time of drafting, it is also hard to determine whether the law in a certain jurisdiction will result in a more favorable ruling for either spouse. Thus, family lawyers are tasked with handling a delicate and sensitive subject during what should be considered a period of pre-marital happiness.
Perhaps the biggest challenge for attorneys and clients regarding these legal considerations is the unpleasantness of talking about the issue. Currently, many couples may feel uncomfortable talking about the subject in the first place, much less considering the legal baggage associated with prenuptial agreements. In order to successfully represent a spouse through this phase of the prenuptial negotiation, one of the biggest challenges faced by clients and attorneys faced in this matter is to carefully navigate around discussing the unromantic topic of how the potential end of the relationship will be handled. Lawyers should help guide and craft conversation and discussion about this topic between spouses in a non-adversarial, protection of familial integrity context.
Some foreign jurisdictions will grant deference to the will of the parties, such as a choice of law clause, and the jurisdiction will be more likely to uphold a provision in a prenuptial agreement so long as its application does not appear to be heavily skewed in the favor of one, perhaps less sophisticated spouse. Although each country will differ, previous experience has shown that a jurisdiction will be more likely to uphold the validity of a prenuptial agreement if an agreement is drafted in both languages in which each spouse is fluent, and both languages of the different jurisdictions. One common mistake for a United States-based spouse is to draft, sign, and execute a prenuptial agreement in English only, even if both parties can speak English, if one of the spouses is from a non-English speaking country.
Working together with foreign counsel may be the best way to ensure the enforceability of prenuptial agreements across borders. Although legal counsel is not necessarily required to represent both parties during the negotiation of a prenuptial agreement, an attorney should make this option available to both spouses. In doing so, the attorney should document that both spouses were given the chance and opportunity to obtain legal representation from a lawyer that speaks the native language of each spouse. Beyond simply providing specialized legal advice, attorneys practicing in this area must ultimately become well versed in any cultural difference that may conflict between the two spouses.
Navigating prenuptial agreements across borders can be tricky and full of pitfalls for international spouses – a lawyer practicing in this area should recognize that this topic may not even be on the radar for future spouses. If any spouses-to-be foresee that their marriage may take either spouse to a foreign country, consulting with a lawyer may be crucial and easy step to preventing unwanted headache and heartache in the future.
Evie Jeang, managing partner of Ideal Legal Group, Inc., is a Taiwanese-American litigator focusing on international family law, particularly divorce and surrogacy. www.ideallegalgroup.com
 See Chaudrey v. Chaudrey, 159 N.J. Super. 566, 578 (1978) (court interpreted prenuptial agreement in accordance to the law of Pakistan, where the agreement was “freely negotiated and the marriage took place.”)
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