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The Value Of An International Prenuptial Agreement

February 21, 2012 | Comments: 0 | Views: 135

International clients are now more frequently recognizing that a prenuptial agreement must often be drafted with a view to its potential enforceability in several jurisdictions. The potential jurisdictions might include:

• The state of current residence of the husband; • The state of current residence of the wife; • The state domicile of each of them; • The place of nationality of each of them; or • The states to which they might relocate in the future, whether alone or together.

While no one can foresee with certainty where they might live in the future, it can 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.

In part, this is because of a lack of appreciation of the fact that other countries might have divorce jurisdiction in the future depending on a variety of circumstances. It is also because the laws concerning the enforceability of prenuptial agreements vary considerably from jurisdiction to jurisdiction.

For example, if a British and U.S. national live and later separate in China, the Brit might be subject to being sued for divorce in England, if that is where he considers his real home to be, since England permits a divorce case to be commenced there based on the "domicile" of just one spouse. This might be financially devastating if the English court were to declare that the parties' prenuptial agreement (perhaps entered into in China) is "unfair" to the other spouse. While the Chinese law might well uphold the prenup, there is every chance that the Chinese courts will not handle the case and that an English court will do so.

Likewise, if French nationals residing in France select a "marital regime" when they marry in that country but they later relocate to Australia, there is every likelihood that an Australian court will accept divorce jurisdiction and will refuse to enforce the prenuptial agreement.

The laws about divorce, custody and prenuptial agreements are local laws. There is generally no international law that governs the application of local law to international relationships.

Divorce requirements and procedures vary from place to place and the same is true for the laws about the financial consequences of a divorce and the effect of a prenuptial or postnuptial agreement.

It is "penny wise and pound foolish," as a British person might say, to skimp on the prenup and to leave it all to a future court to resolve if things go wrong. Even though people know that half of marriages fail they choose often to fool themselves into believing that their own relationship will not suffer the same fate. While divorce is always likely to be messy it is likely to especially so when the spouses are from different cultures, or are or may become expats.

Most family lawyers do not have any experience in handling international prenuptial agreements. While they may be experienced and skilful in drafting and even negotiating a prenuptial agreement that will be effective within their own jurisdiction, they generally have little or no experience in how to handle these matters for international people.

When relationships fall apart international clients realize the value of a prenuptial agreement that helps to clarify and resolve the fair resolution of the financial consequences of marital breakdown.

Get all information about international child abduction and custody at our new york divorce lawyer office.

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