Yesterday we revealed the much anticipated decision from the Supreme Court regarding DOMA and considered the implications this could have for same sex couple.
Indeed, opinions, thoughts and analysis has been thick and fast over the last 24 hours and today we have read this article in Forbes magazine, which we find interesting. The attorney who wrote the piece explains how he anticipates the decision is going to create a flux of marriages, possibly not seen since the end of the Second World War, but instead of the ceremonies being between couple who hold little or no assets, it could in fact be to the opposite end of the scale and involve couples who hold significant assets and property.
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It floats the idea therefore rather than being fools that rush in, whether same sex couples would be wise to seek legal advice about the benefits of entering a prenuptial agreement. Not the most romantic of notions, but the author explains that same sex couples are equally as likely to divorce as heterosexual couples.
However, it then explains the issue with this is that despite yesterday’s welcome decision, individual states still cannot be obliged to recognize same-sex marriages from other states. This creates the potential for a legal mess regarding the respective rights of each partner if they, or just one of them, moves to a state that does not respect same-sex marriages entered into in another state.
It is certainly an interesting angle to consider yesterday’s Supreme Court decision on. Having given the matter some thought, it is an analysis that we wish to develop further. We agree and also anticipate there could be potential future problems with interstate marriages if not all states recognize same sex marriage, but what of international couples?
The point we made with our analysis yesterday was the immigration benefits the abolition of DOMA will bring to same sex couples and the benefits that US citizens should now be able to sponsor their partner should they decide to settle in the US, but what if following this, the couple decide to relocate abroad anyway? What if the split doesn’t happen until then leaving one of the couple say in Thailand, and one in the US? How will courts in foriegn nations that do not recognize same sex marriage enforce divorce judgments or interpret prenuptial agreements? Thailand still does not recognize same sex marriage.
The author of the article suggests that a prenup would help, however in our analysis, this would depend on the conflict of law provisons of the country. Thailand’s Conflict of Laws Act controls any international conflict of laws in Thailand. According to the language of the section, the laws of the marital parties’ common nationality will control the interpretation and enforcement of the couple’s international prenuptial agreement. If the parties do not have the same nationality, then the law of the country that the parties intended or are presumed to have intended to apply to their agreement will be applied by the court.
The uncertainty however remains. We are again left with more questions than answers.
Read the full article here
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