Ending a marriage can be complicated and emotional, no matter what the circumstances. However, complexities are inevitably outsized when international laws come into play. That’s why it’s especially important for those marrying a foreign citizen to take extra precautions before walking down the aisle - particularly if you have or are planning to have children. As a New Jersey prenuptial agreement lawyer, I have seen that the existence of cross-border prenuptial agreements can be useful for couples navigating such challenges.
It’s important to point out that cross-border prenuptial agreements might not hold the same weight in all jurisdictions, especially once you’re outside of the U.S. However, what it can do is lay a clear foundation for fair financial and custodial arrangements.
Many countries do allow prenuptial agreements. They’re often enforceable in European and South American countries, as well as in Australia and China. However, that may be with certain caveats. Also, they are sometimes only considered as one factor, rather than binding as a whole. It truly depends on the laws of the country and the terms contained within the agreement.
In 2010, the landmark ruling of Radmacher v. Granatino was the first in England to recognize any binding effect of prenuptial agreements. There, the U.K. Supreme Court held that although prenuptial agreements and postnuptial agreements aren’t binding (given that the court retains discretion on a case-by-case basis), the court “will recognize that [fair prenuptial agreements] are to be taken into account” as the express wishes of the parties. The Court further instructed that lower courts shouldn’t trump prenuptial agreements simply because “the judge knows best.”
(It’s worth noting that New Jersey prenuptial agreements don’t necessarily need to be “fair” to be enforceable. However, a prenuptial agreement can be unenforceable if it’s blatantly against public policy or unconscionable. Grossly unfair terms can be one factor in such a finding.)
Other countries may have different rules.
In France, for example, a prenuptial agreement won’t supersede statutory rules about each party’s right to the primary marital home. However, there may be provisions to protect inherited property.
Spain will generally enforce foreign prenuptial agreements so long as they are not “seriously damaging” to either party.
You will need to decide at the outset which jurisdiction should be in charge of enforcing the agreement, if it becomes necessary. For example, if you live in New Jersey but your spouse is a citizen of Australia, you should decide before you get married which country’s courts should have jurisdiction in the event of a divorce. That will help you determine before it’s drafted the standards to which the prenuptial agreement should adhere.
Knowing the basics of these rules can help you decide how best to proceed as you consider the terms of a cross-border prenuptial agreement.
Does New Jersey Recognize Foreign Prenuptial Agreements?
What if you have a prenuptial agreement that was drafted in another country?
The short answer is: Probably. However, it depends on the terms that are outlined.
In general, New Jersey will enforce prenuptial agreements written elsewhere in the U.S., per the Uniform Prenuptial Agreement Act. Prenuptial agreements created outside the U.S. may be recognized and enforced, so long as they aren’t contrary to public policy.
As outlined in N.J.S.A. 37:2-34, such agreements can cover the rights/obligations of either party in any property - regardless of when or where it was acquired. It can also cover the right to buy/ sell/ use/ transfer/ exchange/ abandon/ lease/ consume/ expend/ assign mortgages or other property. It can outline the terms of spousal support, a will, or life insurance. However, it generally cannot dictate child custody or child support.
For spouses of foreign citizens, it’s not a bad idea to have prenuptial agreements reviewed by attorneys from both places. This gives the greatest possible chance that the agreement will be upheld in a broad range of jurisdictions.
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