In an era where it’s expected that almost half of all marriages will end in divorce, prenuptial agreements may provide a valuable tool for asset protection and the avoidance of future disputes and litigation.
However in an era where the world also seems smaller than ever it is important that any prenuptial agreement takes into account international jurisdictions.
Prenuptial agreements are not common in Japan, however Japan does have extremely detailed laws governing their application. This distinguishes Japan from many other countries, such as the United States where the laws are not clear cut, and can leave many couples finding their agreements are invalid.
Japan has extremely detailed laws that govern the conflict of law issues of international prenuptial agreements. Conflicts of law arise w here there are two or more countries that have an interest in the case or jurisdiction to decide a case and they have conflicting laws to apply to the case.
With the rise of globalization and increased ease of travel, an international perspective is vital to most legal matters. Many countries have recognized the necessity of a uniform approach for the treatment of international prenuptial agreements and their legislatures have responded and indeed more couples are seeing the benefits of entering into a prenuptial agreement either to protect specific assets, or just for general peace of mind.
However if there are conflicting jurisdictions how do Courts deal with such issues?
Unfortunately, even if the parties’ try and plan ahead an and include a choice of law provision it can sometimes be the case that this offers more problems than it does solutions.
In Thailand if a prenuptial agreement has conflicting jurisdictional issues, then the Thailand Conflict of Laws Act clarifies any international conflict of laws in Thailand, but sadly the situation is much less clear in the US, where couples can never be certain quite how the Courts will rule.
In the EU, the Hague Convention on the Law Applicable to Matrimonial Property Regimes presents a uniform and highly flexible approach to prenuptial agreements which again provides more certainty than the US presently do.
This article by Joe Leeds, manager of Chainat & Leeds law firm looks in more detail at how international prenuptial agreements are dealt with and carries out a detailed comparison of US law, Thailand law and EU law.
Thailand prenuptial attorneys, Chaninat and Leeds explain that prenuptial agreements may have international aspects to them causing the same prenuptial agreement to fall under two or more different legal jurisdictions. Different jurisdictions can sometimes have different legal requirements. It is therefore an important consideration that any Thailand prenuptial agreement takes into account those aspetcs and is valid under Thailand Prenuptial Law.
Prenuptial agreements are a unique type of contract. Most standard contracts, unless they contain illegal clauses, tend to enjoy a freedom of contract, but governments tend to regulate prenuptial agreements because they deal with family issues.
The validity and legal requirements of a prenuptial agreement may differ depending on the jurisdiction in force.
It is important to remember the validity of a prenuptial agreements is not tested until one or both of the parties wishes to rely on it. A new automobile can be test driven, or alternatively a warranty is likely to be provided with the purchase of a new electrical item but in contrast, there is no way of ensuring the quality and validity of the prenuptial agreement until it is tested during divorce proceedings. A defective prenuptial agreement may leave parties unprotected with no further recourse.
If there is only one jurisdiction involved in a prenuptial agreement then matters should hopefully remain relatively straightforward. For example, Couple A live, get married, get divorced, and have all of their assets in New York. Any prenuptial agreement should be relatively straightforward as there is only one jurisdiction – New York.
In contrast Couple B met and were married in Thailand, registering a prenuptial agreement at the same time. Following the wedding, they moved to Germany. After separating and starting divorce proceedings, Mr B stayed in Germany and Mrs B returned to Thailand to be with her family. They have joint assets in both countries. Any divorce proceedings or enforcement of a prenuptial agreement would become far more complicated because two different jurisdictions would be operating and there could well be a conflict between Thai and German laws.
It is important therefore that any prenuptial agreement anticipates such a situation arising. If a consumer requires a prenuptial agreement suitable for different jurisdictions, it is important to instruct an attorney who is both a divorce and prenuptial litigation specicliast and is familar with international issues.