The U.P.A.A. does not specifically address international prenuptial agreements. The only possible mention of a foreign nation would be the Act’s frequent usage of the word “state”. However, nowhere in the Act is the term “state” actually defined. A review of the entirety of the language of the U.P.A.A. reveals that the default assumed definition of “state” refers to a United States’ state and not a foreign nation. This is evident in phrases such as “lack of uniformity of treatment among states” and “policy differences between the states”.53 This implies that the U.P.A.A. does not apply to international prenuptial agreements. However, many states which adopted the U.P.A.A. (or some modification thereof) do not have any additional statutory law which could cover international prenuptial agreements.54 Therefore, in these states there is no statutory law at all for the treatment of international prenuptial agreements. In the states which adopted the U.P.A.A., the courts are left with little guidance from the statutory law on the treatment of international prenuptial agreements.
- An Overview of International Approaches to the Conflict of laws Issues for Prenuptial Agreements
With the rise of globalization and increased ease of travel, an international perspective is vital to most legal quandaries. Many countries have recognized the necessity of a uniform approach for the treatment of international prenuptial agreements and their legislatures have responded.55 This article presents two such legislative approaches as reasonable alternatives to the current inconsistent U.S. approach: The Hague Convention on the Law Applicable to Matrimonial Property Regimes56 and Thailand’s Act on Conflict of laws57. Both of the approaches have benefits and costs for practical implementation.
A. The Hague Convention on the Law Applicable to Matrimonial Property Regimes
The Hague Convention on the Law Applicable to Matrimonial Property Regimes presents a uniform and highly flexible approach to prenuptial agreements. The provisions of the Convention are highly detailed and provide specific solutions to the choice of law and conflict of laws problems of international prenuptial agreements. The Convention limits the marital parties to a choice of law designating only one of three possibilities: the laws of any state that either party is a national at the time of drafting the agreement, law of the state in which either party has his/her residence, and the law of the first State in which other spouse establishes their new habitual residence after marriage.58 Although, the provision limits the couple’s freedom to contract as to whatever country’s laws they would like to apply, it nevertheless protects the policy interests of the jurisdictions that have a connection to the couple and their property.
The Convention provides specific instructions to courts for how to resolve a prenuptial agreement’s conflict of laws issues.59 According to Article 4 of the Convention, if the parties have not specified a choice of law, the parties’ marital property regime will be governed by the law of the country where the marital parties establish their first habitual residence after their marriage. The provision goes on further to specify what nation’s laws will apply in any variation of circumstances such as: the parties do not live in the same country after marriage or the couple establishes their first marital domicile in a State is not a signatory to the Convention.60
Although the provisions of the Convention offer considerable consistency and uniformity relative to the current state of unpredictability in the United States, the U.S. state legislatures should hesitate to adopt the Convention’s provisions wholesale. Some of the provisions include ambiguity and flexibility that may be exploited by the marital parties and reviewing courts in the U.S. federal system. For example, Article 1261, which controls the conflict of law issues for the validity of international prenuptial agreements, is extremely flexible. If the Hague provisions were adopted within the United States, this flexibility could create a quasi-form of forum-shopping by marital parties in the United States. For example according to Article 1262, the prenuptial agreement is valid if it complies with either the law governing the matrimonial property regime or with the laws of the location in which the prenuptial agreement was executed. In the United States, couples could avoid the high validity requirements in their home state by merely traveling to a neighboring state with less demanding validity requirements. Upon returning to their home state, couples could then force their home court to find their otherwise-invalid prenuptial agreement, valid. Thus, couples could shop among the prenuptial agreement laws of different jurisdictions if Article 12 was adopted within the United States. While this behavior is not explicitly forum shopping (traditionally a phenomenon in which litigants try to establish jurisdiction in the most favorable forum), it is a kind of shopping among the laws of multiple jurisdictions (a strikingly similar goal of litigants who attempt forum-shopping). If the United States adopted Article 12 without any subsequent modifications, one state’s validity requirements could in effect only be as stringent as the U.S. state with the least demanding requirements as couples could merely travel to sign their prenuptial agreement. While Article 12 protects the sovereignty concerns of the interested jurisdictions, it does so at a potential risk of abuse.
The provisions of the Hague Convention provide a uniform approach with a relatively high degree of specificity and flexibility. However, the high flexibility and acute ambiguities may be exploited by marital parties and reviewing courts if Convention’s provisions were adopted by the federal system of the United States.
B. Thailand’s Conflict of laws Approach to Prenuptial Agreements
Thailand’s approach to international prenuptial agreements is relatively detailed, lacks many of the ambiguity-derived problems found in other jurisdictions, and protects the interests of foreign nations. The Thailand Conflict of Laws Act63 controls any international conflict of laws in Thailand. The Act is divided into six main titles each devoted to a specific area of the law. Title V governs the legal area of family law. Sections 24 and 25 of Title V specifically address the conflict of law issues of international prenuptial agreements.51 According to Section 2464, the law of the nationality of each spouse controls whether the spouse had the capacity to execute the prenuptial agreement. Section 2565 determines which countries’ laws control the interpretation and enforcement of the prenuptial agreement. 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. If there is no evidence of such an intention, then the law of the first matrimonial domicile will be applied to the agreement. The Thailand Conflict of laws Act also contains a separate Title66 of General Provisions which controls all issues that are not addressed by the remainder of the Act. According to Title I Section 9, “Unless otherwise provided by this Act or other laws of Siam, the formal validity of a juristic act shall be governed by the law of the country of the country where the act is made.”67 As seen above, Section 25 (and the remainder of Title V) only addresses the construction and enforcement issues of an international prenuptial agreement but it does not address which laws will govern the validity of the agreement. Therefore, the general provision from Title I Section 9 governs which jurisdiction’s laws will apply the validity of the international prenuptial agreement. Therefore, within Thai courts the laws of the nation where the prenuptial agreement was signed will determine the validity of the agreement.
53 UNIF. PREMARITAL AGREEMENT ACT, Prefatory Note
54 VIRGINIA CODE §§ 20-147, WEST VIRGINIA CODE §§ 48-1-203, HAWAII Rev. Stat. §§572D-1 to 572D-11
55E.g. The Hague Convention on Law Applicable to Marital Property Regimes
57 THAILAND CONFLICT OF LAW ACT, B.E. 2481 (1938)
58 THE HAGUE CONVENTION ON LAW APPLICABLE TO MARITAL PROPERTY REGIMES, Article 3
60 Id., Article 4 (2) and (3)
63 THAILAND CONFLICT OF LAW ACT, B.E. 2481 (1938)
64 Id., Title V Section 24
65 Id., Title V Section 25