International Prenuptial Agreements: Necessary but Dangerous

• Publication year: 2014
• Author: Jeremy D. Morley

International Prenuptial Agreements: Necessary But Dangerous

Jeremy D. Morley

Jeremy D. Morley is a New York lawyer who concentrates on international family law. His firm works with lawyers and clients throughout the United States and around the world. Jeremy is the author of "International Family Law Practice" and "The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers." He may be reached at www.international-divorce.com.

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 are multi-jurisdictional.

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 People

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 process end?

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...