A foreign nation may have a particularly significant interest in the validity and enforcement of agreements executed within their country. In many nations prenuptial agreements are not considered merely private agreements negotiated between the two marital parties as they are in the United States. Instead, these foreign governments are often heavily involved in regulating and validating these agreements.78 For example, in Thailand a prenuptial agreement must be registered with the Marriage Register (an administrative entity of Thailand’s government) prior to marriage.79 During the registration of the marriage, the prenuptial agreement is reviewed by the government official. The government official must approve of the prenuptial agreement before the agreement is officially recorded. If the marital parties do not abide by this governmental registration process, the agreement is considered invalid and will not be enforced in Thai courts. The Thai government’s control over the parties’ agreement extends past the execution of the prenuptial agreement. The Code mandates that the marital parties must acquire a court-rendered judgment before they will be allowed to alter the agreement after registration.80 Other countries consider prenuptial agreements as a prerequisite to marriage. In the French legal system, the record of the couple’s marriage must state whether the couple has a prenuptial agreement and which countries’ laws the couple has chosen apply to their matrimonial regime.81 Furthermore, France requires a court-rendered judgment in order to amend the prenuptial agreement after the marital proceeding.82 In these respects, the French government has relatively more involvement in a couple’s prenuptial agreement than the United States. A similar level of governmental involvement is seen in the marital regulations in Mexico. In the Mexican legal system there are two marital property regimes.83 Before the parties are allowed to get married, the marital parties must designate which marital property regime they would like to govern their property.84 The couple’s regime decision must be submitted along with the couple’s request for a marriage license. In this respect, the couple’s property regime acts as a prerequisite for the validity of their marriage. Like Mexico, the execution of prenuptial agreements in many foreign countries is often qualitatively different than the private prenuptial agreements that occur in the United States. U.S. statutory law (see discussion of the U.P.A.A) and common law appears to treat prenuptial agreements that are registered by a foreign government’s administration as equivalent to prenuptial agreements that were privately entered into between prospective spouses. The fact that foreign nations regulate the execution process for prenuptial agreements demonstrates that the foreign nation has an interest in the prenuptial agreement.
C. Comity and International Prenuptial Agreements
The principle of comity may be applicable to the discussion of international prenuptial agreements that are registered and approved by foreign governmental administrations. Comity has been applied to other family law administrative proceedings such as international marriages85 and divorces86, yet it has been discussed briefly in regards to international prenuptial agreements in only a handful of cases. In Black v Powers, the Virginia Court of Appeals held that comity did not require the application of foreign law if it offended the forum state’s public policy.87 However, since neither party had briefed the issue, the court did not address whether comity applied and should not apply. Instead, the Virginia court launched into a conflict of laws analysis. Similarly, in Gustafson v. Jenson,88 the court briefly acknowledged the principle of comity in its review of an international prenuptial agreement. The court held that the principle of comity would not apply when the other nation had little or no interest in the matter. The court found that the foreign nations’ laws were inapplicable in the given case and therefore, the foreign country had no interest in the prenuptial agreement. While it is promising that a few courts have discussed comity in relation to international prenuptial agreements, comity’s application to international prenuptial agreements should be further addressed.
There is at minimum, a tenable argument that comity should be applied to internationally-executed prenuptial agreements that are registered with a foreign government. As explained above, in many foreign states a prenuptial agreement is not merely a private contract between individuals as it is in the United States. Rather, jurisdiction such as Thailand, Mexico, and France often require that a prenuptial agreement be registered and recorded by a governmental official under color of law.89 An analogy should be drawn between prenuptial agreements recognized by foreign nations and state government recognized marriages. Marriages registered with state governments are likely to be recognized by sister states by the principle of comity.90 This is in contrast to common law marriages. Common law marriages are not registered by the government and instead are seen as private cohabitation agreements between two parties. Courts are less likely to recognize sister state common law marriages than they are to recognize the validity of marriages registered with a sister state’s government.91 Like state-registered marriages, prenuptial agreements that are validated and registered by foreign governments should receive different treatment than private agreements.92 This is in contrast to the U.S.’s privately executed prenuptial agreements. U.S. state jurisdictions do not require that the privately drafted agreements be registered with the government to be considered valid.93 Private non-registered prenuptial agreements are then more analogous to common law marriages. If states treat registered and non registered marriages differently, then the U.S. courts should presumably consider treating governmentally approved and registered prenuptial agreements differently from private unregistered prenuptial agreements. The comity concerns of government-registered international prenuptial agreements should be addressed.
The current state of inconsistency and unpredictability for international prenuptial agreements in the United States must be remedied in order to promote several important policies: uniformity of results, parties’ freedom to contract, conservation of judicial resources and the mutual recognition of governmental procedures between the United States and international legal systems. The U.S. courts are split into two Restatement approaches; however, there is a great deal of incongruity within each of the two approaches. The Uniform Premarital Agreement Act has not addressed the conflict of law issues within the United States. A uniform approach which balances the forum state’s, marital parties’ and foreign nation’s interests is required. The approach must be flexible enough to allow the forum state to protect its public policy concerns. However, the approach must also yield consistent results in order to protect the parties’ justified expectations.
The United States state legislatures, model act drafters, and U.S. state courts should consider the foreign nation’s interest in the prenuptial agreements. Foreign countries often require parties to register their agreements with the government and consider the prenuptial agreement a procedural requirement of the marriage registration process. When a prenuptial agreement is registered under authority of law by a governmental official, such an agreement raises significant foreign sovereignty and comity concerns. These concerns have not yet been addressed by the U.P.A.A., state legislatures or state courts. The treatment of international prenuptial agreements in the United States is in vital need for reform. In an increasingly interconnected world, it is imperative for U.S. state legislatures and U.S. state courts to consider international perspectives on international prenuptial agreements.
78 Fernandez v. Fernandez, 710 So. 2d. 223, (Fla. Dist. Ct. App. 1998)
80 THAILAND CIVIL CODE 1467
79 THAILAND CIVIL CODE 1466
81 FRANCE CIVIL CODE ARTICLE 76, ARTICLE 1397-3
82 FRANCE CIVIL CODE ARTICLE 1396
83 Fernandez, 710 So. 2d. 223
85 Loughran v. Loughran, 292 U.S. 216 (1934)
86 Chaundry, 388 A.2d 1000
87 Black, 628 S.E. 2d. 546 2006
88 Guftafson v. Jenson, 515 So.2d 1298 (Fla. App. 1987)
89 THAILAND CIVIL CODE 1466, Fernandez, 710 So. 2d. 223,
90 Loughran, 292 U.S. 216
91 Brinson v. Brinson, 96 So.2d 653 (Sup. Ct. Louisiana 1957)
92 E.g. THAILAND CIVIL CODE 1466
93 UNIF. PREMARITAL AGREEMENT ACT (1983), IOWA CODE §§ 637.101, VIRGINIA CODE §§ 20-147, WEST VIRGINIA CODE §§ 48-1-203