JapanIn Japan, the Horei law allows spouses who marry in Japan to choose the matrimonial regime that governs their marriage, provided that it is either the law of the country whose spouse is a national or habitual residence, or, in the case of immovable property, the law of the place of immovable property. The Horei Law also stipulates that marriage contracts are valid if they are concluded under the provisions of a foreign law and establishes a provision for the registration of foreign marriage contracts in Japan. A major advantage for international people is that a prenuptial agreement can greatly simplify a future divorce that might otherwise be too complex or confusing. The decision on the best choice of law cannot be made without being sufficiently informed of the applicable laws and practices of the various competing jurisdictions and of the possible effects of foreign law in one of the potential jurisdictions. The decision should also be made on the advice of a lawyer who has extensive experience in these areas, who is independent in his or her thinking and who has consulted or will consult an appropriate local lawyer in other relevant jurisdictions. It is equally important to note that choice of law clauses may or may not be valid in other jurisdictions. There is no guarantee that a state will enforce a foreign agreement. The best chance of your client`s execution is a prenuptial agreement based on the American model. One could argue that the only really safe bet is not to get married at all. However, if you offer this type of advice, you might as well have advised your client not to look at the foreign love website at all.
Still in terms of assets, marriage contracts are not insurmountable. A Canadian court may modify or even ignore an agreement in certain circumstances. B, for example, when an unforeseen, financially disabling or devastating event has occurred. Most Canadian provinces provide for judicial oversight of marriage contracts, but the standard of judicial review varies from province to province:-Ontario`s Family Law Act allows a court to strike down a marriage contract or part of it if a party has failed to disclose material assets or liabilities if a party has not understood the nature or consequences of the contract. or otherwise, in accordance with contract law. Family Law Act, R.S.O. 1990, C.F.3., Sec. 56(4).-The Nova Scotia Matrimonial Property Act permits the non-enforcement of a prenuptial agreement if a provision is ”unscrupulous, excessively severe for a party or fraudulent.” Matrimonial Property Act, R.S.N.S. 1989, Chap.275, § 29-Saskatchewan allows a court to redistribute property if an interspusal contract was unscrupulous or manifestly unfair at the time of its conclusion. Family Property Act, S.S.
1997, Ch.F-6.3, s.24(2).-New Brunswick allows a court to disregard a provision of a marriage contract if the spouse has not received independent legal advice and the application of the provision would be unfair. Matrimonial Property Act, N.N.B. 1980, c. M-1.1, sec. 41.-British Columbia`s Family Relations Act states that even if there is a valid marriage contract, the court may redistribute property on the basis of equity. The Supreme Court of Canada has confirmed that the Statute of British Columbia provides for a lower threshold for judicial intervention than other provinces. Family Relations Act, R.S.B.C. 1996, Cap. 128, § 65, paragraph 1, 10. Inform the client that you do not know where the client and their spouse may live in the future, where their children, if any, may be, and where one or both of them may have assets or do business in the future.
All of these factors can have an extremely large impact on the applicability of your prenuptial agreement. SPAINThe commercial contracts are enforceable in Spain, unless they are seriously detrimental to the children or to one of the spouses. Article 90 of the Spanish Civil Code. In recent years, the number of marriage contracts signed in Spain has risen sharply. See ”Separate property and family self-determination in Catalonia: a peaceful model under radical change?” by Albert Lamarca i Marqus: civil.udg.es/isfl/europeanregionalconference2003/texts/pdf/Lamarca.pdf RUSSIAThe university agreements are enforceable. See ”Grounds for divorce and maintenance between ex-spouses: Russia” by Dr. Masha Antokolskaia: www2.law.uu.nl/priv/cefl/Reports/pdf/Russia02.pdf. Article 3(a)(7) of the UPAA states that the parties may have contracts on ”the choice of law governing the interpretation of the agreement”. These choice of law provisions are common in U.S.
treaties because people can move to areas with different laws. Some foreign countries do not require choice of law provisions, as a legal code is applied uniformly throughout the country. If a couple does not live in the country where their marriage contract was entered into, or if the contract was drawn up in the distant past, a court may apply the law of the state in which their divorce action was filed. If you have a foreign marriage contract that includes a choice of law provision, it is likely that a U.S. court will comply with that provision. Apparently – at least that`s what you discover when you browse the large number of websites that promise to succeed in finding a foreign bride or groom. Such a website features 6,500 women from 49 countries. Americans scour the world in search of love on the Internet. At least some of them are likely to marry a stranger. These bride and groom would be wise to enter into an American-style prenuptial agreement to ensure enforcement in U.S. courts. For those who choose a foreign marriage regime, there is no guarantee that it will be applied in the United States.
Therefore, one of the most important provisions in the drafting of a marriage contract is the choice of the jurisdiction that governs the contract. A marriage contract must be designed to comply with the laws of the couple`s main jurisdiction, which is a subjective determination based on where the couple has the most ties. Factors that may have a significant impact on the applicability of the prenuptial agreement include the couple`s current or future residence, residence, business relationships, and the location of the couple`s assets. If a couple plans to live in the United States, a prenuptial agreement is usually drafted under the law of the state in which the couple establishes their residence. On the other hand, if the couple plans to live abroad, it may make sense for the foreign attorneys to draft the prenuptial agreement and for the U.S. attorneys to review the agreement to ensure that all relevant U.S. state provisions are incorporated. Netherlands, the parties can conclude a marriage contract at the time of the conclusion of their marriage (or during the marriage itself), but in the latter case, the consent of the courts is required. They can choose between one of the three models described in the Code or regulate their ownership with certain restrictions at will. The marriage contract must be in the form of a notarial deed and registered in a matrimonial register. See Antokolskaia & Boele-Woelki, ”Dutch Family Law in the 21st Century: Trend-Setting and Straggling behind at the Same Time,” Volume 6.4 Electronic Journal Of Comparative Law (December 2002). The Netherlands is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which approves, inter alia, marriage contracts.
To increase the likelihood that a foreign marriage contract will be enforceable in the United States, the parties must be represented by independent counsel (and not rely solely on a notary). There should be fair and appropriate disclosure of assets and obligations. The disclosure must be rescinded beyond the intended disclosure, and at least seven days must elapse between the first submission of the agreement and the signing (California Family Code `1615(c)(2)). Many marriage contracts prohibit post-marital support. Usually, each spouse will leave with the property he owns. If a foreigner`s employability is limited, some alimony payments may be appropriate, or cash donations planned to build up savings. Gift taxes apply to non-resident foreign spouses, so check with your tax advisor to see if your spouse is not living in the U.S. in the year of the transfer. .
