U.S. Courts and the Application of Foreign Law to International Prenuptial Agreements

by Thailand Lawyer on July 6, 2011

Traveling internationally has become easier in recent times and more people are choosing to visit, reside and even marry in foreign destinations.  Statistics show that over 400,000 U.S. citizens marry citizens of other countries each year, and an unrecorded number plan “destination weddings” seeking an exotic place for their big day. Many of these couples, who believed that their prenuptial agreement would provide some certainty for their future, are in for a rude awakening in a US divorce court.  .  

Currently U.S. state courts do not have a uniform approach to prenuptial agreements signed in different state or country. Prenuptial agreements entered into abroad receive inconsistent treatment by U.S. courts.

For prenuptial agreements signed in a different US state or a different country, US courts have numerous approaches to determine the validity of the agreement. Some states have followed an approach referred to as lex loci whereby the court applies the law of the jurisdiction where the execution of the agreement took place. Most commonly the jurisdiction where the parties signed the agreement is considered the place of execution, but some jurisdictions have differing interpretations.  Other courts have refused to apply the sister state’s laws to determine the validity of the prenuptial agreements in any situation.

However, the following three US Court cases precedents demonstrate the importance of complying with the law of the country where you are married.

In the case of Chaudrey v Chaudrey, a New Jersey court ruled that Pakistan’s prenuptial laws, rather than US law, applied to the agreement because it had been signed in Pakistan.  Pakistan prenuptial law does not allow for a prenuptial agreement to provide alimony for a spouse.  The U.S. court interpreted the 15,000 rupees provision as a form of alimony. The court then ruled that the prenuptial agreement was invalid under Pakistani law and therefore was invalid in the New Jersey state court.

In Black v Powers, a Virginia Court of Appeals reviewed a couple’s prenuptial agreement signed in the Virgin Islands. The court ruled that the Virgin Islands’ laws should apply. The court applied the Virgin Islands’ law and upheld the prenuptial agreement.

The court in Mehtar v Mehtar took a rather different approach to an international prenuptial agreement. In that case a Connecticut court reviewed a prenuptial agreement that had been signed in South Africa. The parties specifically contracted the agreement to give effect to their religious beliefs by opting out of the default community marital property system. To determine which law should apply to the agreement, the court conducted a balancing test.. Finding that the interests of Connecticut could not outweigh the expectations of the parties, the court applied South African law. The court found the agreement valid under South African law and enforced it accordingly.

As Jiraporn Thonghong, a Thailand prenuptial agreement lawyer, explains, “ “ We are often hired by clients who are changing attorneys.  What we find is that many attorneys have no knowledge of how the international legal aspects of a prenuptial agreement.   We apply a careful and conservative approach, seeking to comply with the laws of all relevant jurisdictions, whether it be Thailand, a US state or a European nation, so that the agreement will be upheld in a Court.”  we also assist clients in navigating this tricky, divergent system of handling international prenuptial agreements. As more and more people get married overseas and decide to create prenuptial agreements, there will likely be more cases in the next several years to assist in setting a precedent for other U.S. courts to look to for guidance.

{ 1 comment… read it below or add one }

Annie November 25, 2011 at 23:03

Do you have prenuptial experience with international prenuptial between Viet Nam and USA? Thanks

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