Love is in the air when you get engaged, and you may never feel as romantic as you do after an engagement. Especially, if you are part of an international couple!
We dedicate this entire page to those couples who are head over heels for each other and are in the process of deciding where to live as a couple.
If you are a couple who lives internationally and plans to marry with a prenuptial agreement, it is important that you consider the international implications of any proposed prenup. You may ask yourselves:
- Will you plan to live together in the United States, or elsewhere?
- If you plan to live in the United States, which state should you choose?
- If you would like to obtain a prenup in the country where you are currently residing, or plan to reside, what needs to go into that agreement to make it legal?
Where will you live as a couple?
Does where you currently call home seem like the perfect place to live together? Are you going to move to your fiance’s home country instead? Moving abroad can be extremely challenging and choosing where to live is one of the most difficult decisions any couple can make. You will need to consider all factors, such as living, working, family, entertainment and things to do.
Which state should you choose?
So you have decided to move to the United States as an international couple, and you are not sure which state to choose for your prenup. There are a few factors that may make choosing your state a little… er, complicated:
Do you and your fiance live in different states?
Do you plan to move to another state soon?
Own two houses in different states?
You are free to choose whichever state you would like for your HelloPrenup prenup, but it is common practice and commonly accepted that you should choose the state in which you plan to reside as a married couple.
Your choice of state (this is what we call choice of law) determines which state will determine enforcement of your prenup in the event of a divorce.
If you live in one state now, but may move to another state, you may want to consider the default divorce laws in each of those states to see which you are more comfortable with. In that case, you should contact a licensed attorney in your state.
Let’s say you live in California now, but you and your honey plan to move to either Florida or Massachusetts after you get married. Should your prenup be for California, Florida, or Massachusetts? Well, this is where ‘choice of law’ comes in. If you know, 100% that you are moving to Florida right away (because why would you live somewhere cold like Massachusetts?! 🤣) and you plan to live in Florida as a married couple forever and ever, the choice is easier- Florida seems like a logical choice. But, if you are not sure whether you will move, when you will move, or where you will move? You should contact a licensed attorney to talk about what laws in those states look like.
Prenups in other countries.
Prenups in Australia
Prenups are also known as “binding financial agreements” in Australia, and first became enforceable in the year 2000 via the Family Law Amendment Act 2000. The Family Law Act sets forth provisions allowing prenuptial agreements to be drafted by family law solicitors. In order to make a financial agreement binding, it must be in writing, signed by both parties, one party must have at least one original and one a copy, the agreement must state the extent of any spousal maintenance (aka “Alimony” in the US) provided, and confirm that both parties have received independent legal advice, along with a certificate from each of their lawyers.
Prenups in Canada
Prenuptial agreements are gaining popularity in Canada. In addition, they are regularly enforced by courts. Prior to 1978, prenuptial agreements in Canada were not enforced. However, the 1978 Family Law Reform Act specifically authorized marriage contracts, and they have existed in the country ever since.
A prenuptial agreement in Canada must be contained in writing, signed by both parties and witnessed. The agreement may detail a broad range of matters, including how property is owned or divided, spousal support, matters related to the education and raising of children (with the exception of issues concerning custody of children), to name a few.
Like in most countries, there are some exceptions to prenups in Canada. The Family Law Act provides that a court may not enforce a provision for support or a waiver of the right to spousal support if…
a. If the provision for support or the waiver of the right to support results in unconscionable circumstances;
b. If the provision for support is in favor of, or the waiver is by or on behalf of, a dependant who qualifies for allowance for support out of public money; or
c. If there is default in the payment of support under the contract or agreement at the time the application is made.
A court can also modify a Canadian prenuptial agreement if enforcing it would create financial hardship to a party. Here are some examples and caselaw:
-Ontario’s Family Law Act permits a court to set aside a prenuptial agreement or any portion thereof if a party failed to disclose significant assets or liabilities, if a party did not understand the nature or consequences of the contract, or otherwise, in accordance with the law of contract. Family Law Act, R.S.O. 1990, Ch. F.3., Sec. 56(4).
-Nova Scotia’s Matrimonial Property Act allows for non-enforcement of a prenuptial agreement if any term is “unconscionable, unduly harsh on one party or fraudulent.” Matrimonial Property Act, R.S.N.S. 1989, Ch. 275, Sec. 29.
-Saskatchewan allows a court to redistribute property where an interspousal contract was unconscionable or grossly unfair at the time it was entered into. Family Property Act, S.S. 1997, Ch. F-6.3, Sec. 24(2).
-New Brunswick permits a court to disregard a provision of a prenuptial agreement if the spouse did not receive independent legal advice and application of the provision would be inequitable. Marital Property Act, S.N.B. 1980, Ch. M-1.1, Sec. 41.
-British Columbia’s Family Relations Act states that even if there is a valid marriage contract, the court may re-divide the assets on the basis of fairness.5 The Supreme Court of Canada has confirmed that British Columbia’s statute has a lower threshold for judicial intervention than do the provisions in other provinces. Family Relations Act, R.S.B.C. 1996, Ch. 128, Sec. 65(1).
Read the fine print of the Family Law Act here: olr.org/wp-content/uploads/2018/01/olr_11.1_Tennenhouse.pdf
Prenups in New Zealand
New Zealand has permitted and upheld prenuptial agreements since 1976. Generally speaking, property acquired during the course of a marriage, same-sex relationship, or de facto relationship is by default divided equally in the event of separation. However, married couples and those in de facto relationships are permitted to enter into opt-out agreements (such as prenups) through which they may stipulate ownership, status, and division of property (including future property).
Like in the USA, there are certain rules to which these agreements must conform in order to be upheld and considered valid. For example, in the past an agreement could be thrown out if it was found to have caused “injustice”. However, as of 2001, only cases of “serious injustice” warrant setting aside a prenuptial agreement. This reform was made in order to provide couples with greater certainty around the enforceability of their premarital contracts. Going forward, most prenuptial agreements in New Zealand are upheld and are rarely set aside.
Couples seeking prenuptial agreements in New Zealand who have ties to other countries should take note of one unusual and noteworthy stipulation: the prenup is not enforceable if the partners formally agreed prior to or during their wedding that their marital property will be subject to the property law of a country other than New Zealand. However, such an agreement is only considered legitimate if it was made in writing or in another legally valid way in accordance with the laws of the relevant country.
Prenups in the UK
The UK consists of four countries: England, Scotland, Wales, and Northern Ireland. Therefore, laws vary slightly. Prenuptial agreements in England and Wales are treated differently than in Scotland and Northern Ireland.
Read more below:
- Prenups in Englad and Wales
- Prenups in Scotland
- Prenups in Northern Ireland
Prenups in England and Wales: Prenup laws are complex and unsettled in both of these countries. In the past, these countries’ stance on prenuptial agreements was that they were not valid and would not be enforced. Nowadays, although there is no legislation in which permits or enforces these agreements, there is a new law in effect which provides detailed stipulations for the financial consequences of divorce. This law also takes marital contracts into account (Morley, 2022).
The courts now sometimes uphold prenuptial agreements, but often they don’t. When it comes to divorce, Courts in England and Wales are interested in fairness above all else, and they are therefore is more interventionist than elsewhere. Couples seeking prenups in these countries should be aware that premarital contracts are not legally binding and may not be upheld (Morley, 2022).
Prenups in Scotland: In contrast to its siblings to the south, Scotland does have legislation permitting prenuptial agreements (Morley, 2022), which makes them legally binding (Rivers, 2020). However, the Scottish courts still enjoy a large degree of freedom in governing the enforceability of prenuptial agreements. Like in England and Wales, fairness is key: the courts are instructed to divide marital property in a way that is fair and equal–or in “such proportions as are justified by special circumstances”. A prenup is one of the special circumstances this clause in Scottish law refers to (Morley, 2022).
However, if the courts examine a prenup and find it to be unfair, they are able to overrule it. Scottish courts also often look to prenuptial agreements for spousal support stipulations as well as guidance on rights of succession if one spouse dies during the marriage.
Prenups in Northern Ireland: Prenuptial agreements in Ireland are treated relatively similarly to how they are treated in Wales and England. Historically, they were considered to be going against public policy and were therefore not enforceable. However, the courts’ approach has shifted in recent years; in 2010 they decided that as long as a prenuptial agreement was entered into a.) with full knowledge by both parties of the implications of the agreement and b.) after both parties provided full financial disclosure, and as long as the agreement is not ‘obviously unfair’ (Devlin, 2022).
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