Updated: We have an iron-clad prenuptial agreement and other Myths of the Prenuptial Agreement

by admin on January 17, 2011

The Internet, for all its benefits, has turned the most unlikely people into authors.  In Thailand, (as elsewhere) there is a major problem with non-attorneys posing as attorneys, and attorneys with little or no experience announcing their opinions on various areas of law where they are wholly unqualified. 

In one particular area of law, prenuptial agreements, the amount of nonsense being published is massive.  Of course, the law is a business, and the motivation to make a strong sales pitch is immense.  Nevertheless, one of the details that separate competent ethical attorneys from fraudsters and incompetents is their ability to disclose the true nature of legal proceedings to their clients without untruths and misrepresentations. 

This post intends to dispel some of the myths and hyperbole surrounding prenuptial agreements in Thailand and international premarital agreements in general. 

Advertising False Claim #1:  “We have an iron-clad prenuptial agreement.” 

Reality:  Although the objective of a lawyer drafting a prenuptial agreement is to make it withstand court challenge in a divorce case, promising that an agreement is “iron clad”, impervious to challenges, (or possesses supernatural powers) amounts to false advertising and unethical behavior.  This is a favorite advertising pitch for persons impersonating lawyers and without even basic knowledge how the legal system works. 

In a divorce case in a Western jurisdiction, a prenuptial agreement can and will be routinely challenged in a divorce case.  A divorce case litigated in family court is an adversarial process. Clients and their lawyers are advocates battling to the maximum extent allowed by law.  Evidentiary issues and factual determinations are determined by judges (or in some cases juries) who have varying dispositions and will reach different conclusions.

Regardless of the outcome of a trial court decision it may be overturned by an Appeal Court. In common law jurisdiction such as the USA, UK and Australia, each jurisdiction will have hundreds of case decisions that can form the basis of a challenge.  Western jurisdictions will have numerous exceptions to enforcing a prenuptial agreement.   These exceptions become even more pronounced when the agreement is an international agreement.

The best lawyers can only draft agreement that will meet the basic requirements of a given jurisdiction.   No lawyer can possibly guarantee that his or her agreement can withstand all the unknown variables of a litigated divorce case.  If any “lawyer” purports to tell you he has an “iron clad” prenuptial agreement, check the contents of your pockets to make sure nothing is missing, and get yourself to a real lawyer as soon as possible.

Myth #2: A US prenuptial agreement that complies with the Uniform Premarital Agreement Act is strong and secure.

Reality: This is a favorite advertising gimmick used again by either unknowledgeable attorneys and/or fraudsters who have no knowledge as to how the US legal system works.   The US is a common law (as opposed to civil law) jurisdiction.  This means that judges rule based on case precedent and every state has its own case law.  A case decision is a decision issued by a previous court and legalized in a published book of court decisions. 

If a state has adopted a Uniform Act, this provides a foundation for the most basic issues. Most jurisdictions do not adopt the Act wholesale but use a modified version of the Act.  Regardless of whether the unchanged or modified Act is used, the Act is so brief in content and general in its applications that it has very little importance in a given case.  Rather, it is the case decisions that have provided the vast majority of the law affecting prenuptial agreements.  Therefore the majority of law concerning prenuptial agreements will be found in case law and not in the Uniform Act.  The law of each state will differ despite the fact that the state may have adopted a Uniform Act.

Myth # 3: Prenuptial agreements in Thailand are of limited value.

Reality:  Thai law routinely enforces prenuptial agreements that accord with Thai law.  Unlike Western jurisdictions, a prenuptial agreement is registered with the government at the time of marriage registration. 

There are circumstances where the Thailand prenuptial agreement may be invalidated but they are fewer than in Western common law jurisdictions.

Myth #4:  If my fiancé(e) and I sign a pre-nuptial agreement that specifies that the laws of New York will govern, then Thai law won’t apply to my prenuptial agreement.

Reality: In divorce cases, the choice of law clause is not always honored.  This means that a state family court can choose to disregard a choice of law clause (that specifies the law of another state) and hear the case according to their own law. The reason for this difference is that all US (and most international) jurisdictions will have a policy, formally encoded in their state laws to have authority to rule on cases that affect the public welfare, safety or morality of their citizens. This broad exception normally will include family law cases, including divorce cases.  States may overrule certain contracts by means of protecting the public welfare, safety, health or morals of that individual state.  This expression of government power occurs in most jurisdictions, although it may be phrased differently.

Myth# 5:  If my fiancé(e) and I sign a pre-nuptial agreement that specifies that a certain court (for example the courts of California) will hear my case, then no matter where I am, I can have my case brought in that State Court (or for example the court in California.)

Reality: Although the best crafted prenuptial agreement may state a specific forum or jurisdiction where the case will be heard, a court will only accept cases that are under their jurisdiction, which is a determination that the court will decide based on their law and not a private agreement, regardless of what is written in the choice of forum clause.  You cannot force a court to accept a case if the court does not believe it has proper jurisdiction.  Further, an aggrieved spouse that is anticipating a divorce can file in a forum that differs from the choice of forum clause stated in the prenuptial agreement if he/she chooses, and if the court has independent jurisdiction, the court will more than likely accept the case.

These myths only scratch the surface of issues surrounding multinational prenuptial agreements.  Drafting Prenuptial Agreements requires knowledge of marital and divorce law, as well as the procedures and practice surrounding how divorce cases are actually litigated and handled in Court. International agreements require this knowledge as it applies to different sets of laws of different jurisdictions along with the Conflict of Law laws of said jurisdictions. 

Related Documents:

Considerations for International Prenuptial Agreements

Prenuptial Agreement Law of Thailand

Uniform Prenuptial Agreement Act

Thailand Lawyers for Prenuptial Agreement

{ 1 comment… read it below or add one }

Stifler December 17, 2015 at 10:53 am

Hoi Arthur,het is echt een prachtig land. Zo groot en ruim en er wonen maar 22 meijoln mensen Met oud en nieuw zijn we in Sydney En daarna rijden we door naar Adelaide. Half januari gaan we richting Nieuw Zeeland.Volgend jaar moeten we echt eens afspreken.GroetjesPeter en Clara

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