Pre-nuptial Agreements Around the World
The law changes, depending where you are in the world. A prenuptial agreement may hold weight in one country but not the next. So it is important you know how the law of your country understands prenuptial agreements before you take one out. The following list of countries details the different law enforcements regarding prenuptial agreements.
In England, the courts in the past have given little weight to prenuptial agreements because it was believed they went against public policy. However, today this view is shifting. English courts are now stating that a pre-nuptial agreement can be taken into consideration when deciding what adjustments to make to divorcing couple's financial circumstances. Indications, based on previous cases, suggest that where there is no duress, the parties have received independent legal advice, the relevant facts have been disclosed and the agreement is not manifestly unfair, the courts are increasingly likely to uphold the terms of a pre-nuptial agreement.
In Australia, prenuptial agreements are known as 'binding financial agreements' and became enforceable in Australia with the enactment of the Family Law Amendment Act 2000.
Australia's law states that for a binding financial agreement to be binding it must be in writing signed by both parties.
An agreement will not be binding if:
- It was obtained by fraud, was made under duress, by mistake, by virtue of undue influence, or if it is impracticable for all or part of the agreement to be carried out.
- If there has been a material change in the cure of a child leading to hardship
- If a party engaged is in unconscionable conduct when making the agreement such as where one spouse is at a disadvantage, the other spouse knows it and the agreement runs contrary to good conscience.
Austria is a party to the Hague Convention on the law applicable to matrimonial property regimes which specifically authorise pre-nuptial agreements.
Pre-nuptial Agreements are enforceable.
Prenuptial agreements are enforceable in Canadian Courts in Ontario. Other common law provinces of Canada previously considered marriage contracts to be contrary to public policy and unenforceable, but the 1978 Family Law Reform Act specifically authorised marriage contracts.
The Family Law Act provides that a court may set aside a provision for support or a waiver of the right to support in a marriage contract and may determine and order support even though the contract contains an express provision excluding the application of this section.
- If the provision for support or the waiver of the right to support results in unconscionable circumstances
- If the provision for support is in favour of, or the waiver is by or on behalf of a dependant who qualifies for allowance for support out of public money.
- If there is default in the payment of support under the contract or agreement at the time the application is made.
As a result, a provision in the marriage contract either limiting or precluding a claim for future support is very much subject to the discretion of the court at the time an application for support is made
Article 19 of the 2001 Marriage Law specifies that:
'So far as the property acquired during the period in which they are under contract of marriage and the pre-nuptial property are concerned, husband and wife may agree as to whether they should be in the separate possession, joint possession, or partly separate possession or partly joint possession. The agreement shall be made in writing. The provisions of Articles 17 and 18 of this law shall apply to the absence of such an agreement or to a vague one.
Pre-nuptial agreements are enforced in Finland. A new law applies in Finland which allows the spouses to decide in advance which law will govern their marriage, provided that at least one of the spouses has a connection based on nationality or domicile to the state whose law they want to apply.
Pre-nuptial agreements are enforceable. Germany's Federal Court of Justice recently ruled that notarized pre-nuptial agreements that seriously disadvantage one party in a marriage could be deemed invalid. The judges stated that while, in principle, a contract may state that one of the partners has renounced his or her right to receive alimony. If the agreement is one sided it would be morally unacceptable and could therefore be challenged. The court also ruled that a spouse is free to contest the contract in instances of imbalance where her partner's income has risen dramatically during the marriage because, for example, she was home caring for children.
Pre-nuptial agreements are enforceable.
In Ireland it appears that the courts are not required to enforce pre-nuptial agreements. The Family Law Act (1996) gives the Irish courts extremely wide discretion over the distribution of a divorcing couples assets.
It is assumed that Irish courts will not consider and will most certainly refuse to automatically enforce a pre-nuptial agreement.
It is believed that a case concerning pre-nuptial agreements has not yet been before the courts in Jamaica. Traditionally Jamaica has followed English law.
In Japan, the Horei Law authorises spouses who marry in Japan to choose which matrimonial law regime will govern their marriage, provided it is the law of the country of either spouses or nationality or habitual residence, or, regarding immovable's, the law of the location of the immovable's.
The Horei Law also specifies that pre-nuptial agreements are valid when made under the provisions of a foreign law and sets forth a provision for registration of foreign pre-nuptial agreements in Japan.
Luxemburg is a party to the Hague Convention on the law applicable to matrimonial property regimes, which specifically authorises pre-nuptial agreements.
The parties may enter into a pre-nuptial agreement at the time of concluding their marriage or/and during the marriage itself, but in the latter case, the approval of the courts is required.
Section 21 of New Zealand's property (relationships) Act 1976 expressly authorizes spouses to make agreements.
The law of the Philippines allows spouses to execute and file with the Civil Registry a prenuptial Property Agreement (Surat Pernyataan Harta) which must be signed before a local notary public. Otherwise, Indonesian marriage law assumes joint ownership of property.
Prenuptial agreements are enforceable. Portugal is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements.
Prenuptial agreements are enforceable.
Prenuptial agreements are enforceable.
Prenuptial agreements are enforced in Spain, unless they should be detrimental to the children or seriously damaging to one of the spouses (Article 90, Spanish Civil Code). In recent years, there has been a large increase in the number of prenuptial agreements signed in Spain.
Prenuptial agreements are enforced in Sweden.
Prenuptial agreements are enforceable in Switzerland. Prior to a marriage abroad, you must consult the private international law of the chosen country to find out the conditions to be met and the applicable judicial regulations. This informed outlook will help you choose a solution that best suits your needs. In fact, the applicable matrimonial regime will be the one you will have chosen (written agreement, marriage contract). You may choose between the law of the country in which both of you are residing and the law of the country of which one of you is a citizen. You may modify your selection at any time. In general, if you have not expressed a choice, the law of the country of residence applies.
Prenuptial agreements are enforced in Thailand.