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

by admin on June 4, 2009

(18 January 2011) We recently decided to update this post, to provide more information and insight into the ins and outs of prenuptial agreements for our readers. Please see the updated Prenuptial Agreement  post for more.

There are so many misinformed publications available on the internet that are creating many myths surrounding prenuptial agreements and multijurisdictional agreements in particular.  Joe Leeds, an American lawyer in Bangkok with multinational jurisdiction and courtroom experience, dispels the myths. 

Myth #1:  We have an iron-clad prenuptial agreement. 

Reality:  In a divorce case in a Western jurisdiction, a prenuptial can be challenged and struck down.  There are a number of grounds to invalidate a prenuptial agreement and whether the agreement is upheld is dependent on many factors other than the agreement itself, including how the case plays out in court.

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

Reality:  The US is a common law (as opposed to civil law) jurisdiction.  This means that judges rule based on case precedent.  Every state has its own case law.  If a state has adopted a Uniform Act, this provides a foundation for the most basic issues. However, 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 prenup.

In divorce cases, the choice of law clause is not always honored.  The reason for this difference is because the state—by means of the court hearing the case—will normally have an expressly stated public interest.  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 the courts of New York will hear my case, then no matter where I am, I can have my case brought to judges in New York.

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 regardless of what is written in the choice of forum clause.  Further, an aggrieved spouse that is anticipating a divorce can file in 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.  Please see Consideration for International Prenuptial Agreements for a more detailed analysis.

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