Lawyers representing international clients who plan
to marry and who want the protection of a prenuptial agreement should always
consider the international ramifications of any proposed agreement. While
conventional domestic prenuptial agreements raise grave malpractice concerns
for family lawyers, the concerns become a hazardous minefield when the issues
In many ways the world is rapidly shrinking and “globalizing”. “The World is Flat” is
not only the catchy title of a bestselling book, but it also highlights the
fact that international borders matter far less to most aspects of life than
was the case a couple of decades ago. In sharp contrast, however, divorce laws
remain local and parochial. Not only do divorce requirements and procedures
vary from country to country, but so do the substantive laws concerning the
division of assets and spousal and child support. Moreover, the laws about
prenuptial agreements and marriage contracts vary considerably around the world
and – just as important – the attitudes of courts to such contracts diverge
considerably, significantly and in many different ways from country to country. Outside of the European Union there
is generally no international law that governs the application of local law to
international personal relationships.
Certainly it would be foolish to assume that a
"prenup" that is currently valid in the place of the marriage or the
place of current residency will be equally valid in other places which might
have divorce jurisdiction in the future.
International issues concerning prenuptial
agreements are obviously of critical importance for people of different
countries of origin or for people from a country other than the place where
they currently reside. But there are far more clients who may require
international support concerning prenuptial agreement matters. Many clients
have significant contacts with numerous countries or believe that they may in
the future. Take the example of an international symphony conductor who may
have ongoing appointments with many orchestras and festivals around the world,
teaching positions with universities and conservatories in other parts of the
world, and personal connections and assets in yet more parts of the world. What
if his fiancée is an international business consultant? Or an international movie
star? In such circumstances, where does the lawyer start? And where does the
We recently represented an American business
executive living in country A in Europe who was planning to marry a woman in
the same city who was from country B. We knew that residency in country A
created red flags as to the future enforceability of the proposed prenuptial
agreement there. We elicited the fact that the parties might temporarily
relocate to States C, D or E in the United States or to countries F or G in
Europe. We further ascertained that they
could potentially move to any of a host of countries in the future but that
countries H, I and J were more likely than the others. Accordingly, we drafted
a prenuptial agreement and certain other documents in close collaboration with
attorneys in jurisdictions A, B, C, D, E, F, G, H, I and J.
While such precautions are time-consuming and
expensive, it would often be “penny wise and pound foolish” (as the old British
saying goes) to skimp on the prenup and leave it all to courts to resolve if
and when things go wrong.
The need for extreme care and self-preservation in
such circumstances hardly needs emphasizing.
representing international clients are now more frequently recognizing that a
prenuptial agreement must often be drafted with a view to its potential
enforceability in an array of potential jurisdictions. These might include any
of the following:
state of current residence of the husband.
state of current residence of the wife.
state of domicile of either of them.
state of the nationality of each of them.
states to which they might relocate together in the future.
states to which just one of them might relocate.
Selection of the Governing Law
A critical element of any international prenuptial
agreement is the choice of the jurisdiction under whose law the agreement will
be drafted. Obviously lawyers should not be wedded to their own jurisdiction as
the “home” of the agreement. It must also be recognized that silence as to the
choice of law is in many respects equivalent to the express selection of that
The decision as to the best choice of law provision
cannot be made without being adequately informed as to the applicable laws and
practices of the various competing jurisdictions and as to the potential effect
of the foreign law in any of the potential jurisdictions. The decision should
also be made upon the advice of counsel who has substantial experience in such
matters, who is independent in thinking, and who has consulted or will consult with
appropriate local counsel in other relevant jurisdictions. It is likewise
important to be aware that choice of law clauses may or may not be valid in
A choice of law clause should usually be drafted
broadly. In one case a court in Oregon applied the law chosen by the prenuptial
agreement -- California law -- only as to the construction of the agreement,
but did not apply California property law because the choice of law clause was
limited to construction issues. In re Marriage of Proctor,
203 Or. App. 499, 125 P.3d 801 (2005), opinion adhered to as modified on
reconsideration, 204 Or. App. 250, 129 P.3d 186 (2006). Choice of law clauses
should provide for both the application of both substantive and procedural law
of the foreign jurisdiction to be effective.
The following are some basic principles
that the author has developed from handling many such agreements throughout the
world over a number of years:
is a very highly specialized area. There is much more risk for the family law
practitioner who agrees to handle an international agreement than is the case
with a conventional prenuptial agreement. These matters are tricky and they
require great care. Do not handle international prenuptial agreements unless
you have experience or are collaborating with an international family lawyer
who handles international prenuptial agreements regularly.
that only one lawyer is in charge of the entire process, is the chief
coordinator among the various lawyers in different jurisdictions that work on
the prenuptial project and is the primary (or sometimes the sole) liaison with
the client. If one lawyer is not clearly in charge there may well be great
confusion, lawyers will be tempted to jostle for a larger role than might be
appropriate, the client will receive conflicting advice and important issues
might never be addressed.
not take on the process of drafting an international prenuptial agreement
unless you are prepared to work with foreign counsel, to understand foreign
law, to become familiar with different legal concepts that may apply to your
client's circumstances and to work in an environment in which there are no
clear-cut rules or procedures in which you may often feel compelled to consult
your malpractice policy.
4. Make it clear to the client that you are
admitted to practice only in Jurisdiction A (or perhaps A and B); that while
you may have a little familiarity with Jurisdiction C, you are not admitted to
practice there; that anything that you might say about the law of that
jurisdiction is strictly subject to the client's confirmation with local
counsel; that you have no familiarity with the laws of Jurisdictions D, E, and
F; and that you will endeavor to find out what you can about the laws in those
jurisdictions but you will need to rely on local counsel and that it is local
counsel's advice upon whom the client will ultimately be relying. Back this up
with a letter to the client and notes to your file.
clear authority from the client to engage the services of local family lawyers
in other jurisdictions for the purposes of advising as to the laws and
procedures of their own jurisdictions.
clear on client confidentiality when you hire a foreign lawyer. The rules vary
funding to cover all of the anticipated legal charges. It is critical to know
that you may be responsible for the legal fees of lawyers you ask for help in
foreign jurisdictions. See the International Bar Association's
International Code of Ethics, Rule 19, which provides, in part, that, “Lawyers who engage a foreign
colleague to advise on a case or to cooperate in handling it, are responsible
for the payment of the latter's charges except express agreement to the
contrary.” Find out what fees each lawyer charges and how the lawyer expects to
be paid. In some countries, fees are fixed by local law. You should establish a
workable billing schedule. Foreign lawyers may not be accustomed to including a
description of work performed in connection with billing. Some foreign
attorneys may expect to be paid in advance. Others may demand payment
periodically and refuse to continue until they are paid. Request an estimate of
the total hours and costs of doing the work. Be clear who will be involved in
the work and the fees charged by each participant.
reviewing foreign law, be careful to understand the terms that the foreign
local lawyers use. For example, foreign terms might be translated into English
as “marital property”, “custody”, “ownership”
and “commingled” but the terms might well have completely or even subtly
different meanings in the foreign jurisdiction which could seriously impact the
way that a contract is interpreted. Become familiar not only with the law as it
is written in the foreign jurisdiction but the law as it is actually applied
and as it might apply to your particular client if the prenuptial agreement
were brought before the courts in that jurisdiction. In this regard, it is
critical to determine how much discretion is afforded to a judge in the foreign
jurisdiction to rewrite specific provisions or to take any action other than
strictly applying the law concerning prenuptial agreements.
out the conflict of laws issues. Be alert to the fact that a contract executed
in one jurisdiction might in any particular jurisdiction be governed by another
jurisdiction's law. You may even need to consider renvoi rules (perhaps for the
first time since cramming in law school for a Conflicts exam) insofar as
another court that applies its own law to a prenuptial agreement might include
its laws on the conflict of laws, which might require the court to apply the
laws of another jurisdiction.
the client that you do not know where the client and his or her spouse might
reside in the future, where their children, if any, might be located and where
either or both of them may in the future have assets or do business. All of
these factors may have an enormously significant bearing on the enforceability
of their prenuptial agreement.
jurisdictions still do not enforce prenuptial agreements. Other jurisdictions
have rules that make it easy for a court to invalidate a prenuptial agreement. In
some such situations, it is also good practice to consider whether the parties
should sign so-called “mirror agreements” that contain essentially the same
terms as the primary agreement but are executed in accordance with the local
law and are to come into effect only if the primary agreement is not recognized
by a local court. It is sometimes good practice to have the parties execute a
simple regime selection document at the time of their marriage in a civil law
country such as France or Italy while at the same time having a far more
complete agreement entered into in a common law jurisdiction such as New York
or California that cross-references the civil law selection. If there is to be more than one agreement it
is important to decide how to prioritize between them and to avoid unnecessary
confusion by having multiple agreements that cover the same topic.
may well be prudent to insist that there be compliance with both the procedural
and substantive requirements of the toughest potential jurisdiction, or even
that each and every hurdle to overcome for enforceability in any of a list of
jurisdictions should be fully complied with.
mean that counsel should ensure compliance with all of the execution
requirements of every potential jurisdiction.
must be alert to the fact that the way that the courts of a particular country
apply foreign law may vary considerably. Thus, in a totally different context,
the author worked on a custody case in Japan in which a Japanese court ruled that
the provisions of California law requiring that both parents be permitted to be
substantially involved in the lives of their children meant that a (good)
foreign father could visit his child once a month for a few hours under
must also be alert to varying rules in other jurisdictions as to validity of
execution; requirements for independent representation; disclosure of assets;
fairness; and unconscionability. One example is that of disclosure. It may
suffice in one jurisdiction to attach an appendix that lists in summary form a
party's assets and liabilities. However, in California it is the practice for
the attorneys for each party to deliver a “disclosure packet” to the other
party containing the last three years' personal tax returns as a well as a
schedule of assets and liabilities and if the party owns a business to also
deliver three years of business tax returns and a profit and loss statement.
it clear to the client that you are not an oracle and that you cannot predict
the future. Therefore you do not know what the law will be in any particular
jurisdiction, even including your own, in the future and how it might be
applied by the courts in any such jurisdiction. Consequently, you are unable to
guarantee that the prenuptial agreement will be enforceable at the time in the
future when a court in your own jurisdiction or in a foreign jurisdiction might
look at it.
International prenuptial agreements are traps for
the unwary or unknowing. They are extremely important to clients but must be
handled with great care by family law counsel.