Foreign Marriage Contracts & Divorce

Walters Gilbreath, PLLC

With the constant rise of inter-country mobility of people, it makes sense that there will be a rise in the examination of foreign marriages and foreign marriage contracts.The truth is, most countries allow premarital agreements; they are usually called prenuptial agreements, antenuptial agreements, ketubahs, marital regimes, etc.

Will the U.S. ignore your Marital Agreement from China, India or Brazil?

Premarital agreements tend to address what will happen with property in the event that the marriage ends in divorce or even by death. In many countries abroad, it is tradition to have clauses regarding dowries, custody, etc. included in marital contracts. While many couples meet one another in the foreign country, due to the rise in online dating, some American people are finding their future spouses online; these future spouses may live in another country. In cases such as these, the couple typically chooses to adopt an American premarital agreement to substantially increase the likelihood that it can and will be enforced in an American court. So what do we do with premarital agreements once a couple that was married abroad move to the U.S., and seeks a divorce? Will the state court acknowledge that marriage? If it does, will it also acknowledge and enforce your marital agreement or contract that you made with your spouse in a foreign country? This blog will go into these very issues and give you information so that you will know what to expect if you ever file for divorce in the U.S. after being married in a foreign country.

What is it like getting married abroad?

Typically, the U.S. embassy or the consulate won’t be able to perform any marriages in a foreign country. Instead, the law of the foreign country is applied and local civil or religious officials will perform the marriage. If the marriage is conducted in a manner that is in accordance with the law there, the marriage is likely to be recognized as valid. To double-check if the marriage will be recognized in the U.S. state that you wish to be divorced in, contact the state’s Attorney General. It may also be useful for you to complete a Certificate of Witness to Marriage (Outside of the United States) to help demonstrate the marriage’s validity.

More About Foreign Premarital Agreements

There are two main categories for foreign premarital agreements:Prenuptial Agreements and Religious Agreements. Typically, if you are concerned with the protection of property from a spouse in case of death or divorce, you elect a prenuptial agreement instead of a religious one.

Prenuptial Agreements

  • Prenuptial Agreements are marriage contracts that determine the distribution/division of property should the marriage end by divorce or by death.
  • These agreements are just like a Final Divorce Decree. Imagine that when you get married, you go ahead and draft and sign a Final Divorce Decree that is only valid if you divorce. This is just like a premarital agreement.
  • These agreements should drafted by an experienced and licensed attorney to raise the likelihood that a U.S. court will enforce such agreement.
  • Premarital Agreements are different in some counties; in some countries the agreements are only optional and can be overridden if the court finds that it is in the best interest of justice (i.e. Mexico).

Religious agreements

  • These type of agreements are quite common in many countries.
  • Since the U.S. is a nation that must separate church and state, the courts that have enforced religious agreements tend to not allow the agreements to interfere with the jurisdiction of the secular court to divide property or grant alimony/spousal maintenance.
  • Example : It’s a quite common practice for people in many countries to get married by signing a religious marriage contract often followed by performance of some religious rituals. Muslim marriages, in many countries, follow such an approach.
  • The basis for marriage under Islamic law (Sharia) is a marriage contract – also called “mahr” or “sadaq”. The contract is formed between the prospective married couple by an offer and an acceptance, and stipulates a mahr / dower amount. The marriage is official when the couple and their witnesses sign the contract in the presence of a sharia court official or an authorized “kazi”. The marriage contract, thus entered, forms an integral part of the marriage and sets forth the respective rights and duties of both parties to the marriage.

Is it possible to make your Premarital Agreement more enforceable?

Actually it is. Section 3(a)(7) of the UPAA states that that parties may have contracts regarding “the choice of law governing the construction of the agreement.” These choice-of-law provisions are quite common in contracts in the U.S. since people tend to move throughout the country, where the laws may be different. On the other hand, some foreign countries tend to not need the choice-of-law provisions since their law is applied throughout the entire country.

If you have a foreign marital contract that has a choice-of-law provision, it is likely that a U.S. court will follow it. However, if the married couple has not lived in the country that they were married in and the agreement was drafted a while ago, the court may apply the law of the state that the divorce was properly filed.

Consider these following tips if you are planning a premarital agreement:

  • The premarital agreement should include a choice-of-law clause that applies to the construction of the agreement and the substantive law of the selected forum. The parties may also select a dispute resolution process such as arbitration or mediation.
  • To be effective, choice-of-law provisions have to provide for the application of substantive and procedural law of the foreign jurisdiction. Since many foreign agreements lack this clause, the agreements will not be upheld 100% of the time.
  • To increase the likelihood that a foreign marital agreement will be enforceable in the U.S. the parties should be represented by independent legal counsel. Do NOT rely only on a notary.
  • Be sure that both parties have fairly and reasonably disclosed all assets and liabilities prior to the signing of the agreement.
  • Your attorney should have the premarital agreement translated if one of the parties does not speak the language of the country and require that this party acknowledge in writing that he or she understands the meaning of the agreement.
  • Videotape the execution of the agreement and record the parties stating that this agreement was not procured by duress or fraud, that they understood the contract, and that they had the capacity to sign the contract.
  • If possible, get an American premarital agreement/contract, especially if you anticipate moving to the U.S.

Tips & Warnings

  • Sometimes though you are legally divorced in the U.S., the foreign jurisdiction where you were married will not acknowledge the divorce. If they don’t you may have to initiate divorce proceedings there as well.
  • U.S. courts have no jurisdiction to enforce a divorce decree that makes disposition of property that is located abroad or custody agreements if the child is living abroad. A U.S. court could uphold an agreement to divide overseas property but only by express agreement of the parties.
  • If your spouse lives in a country that is not a member of the Hague Service Convention, it may be more difficult to serve them. If the Hague Service Convention does not apply, you should refer to the local law to determine how the divorce papers have to be served.

What should you take from this article?

  1. Record proof of your foreign marriage
  2. Try to get an American premarital agreement if you anticipate moving to the U.S. and
  3. Hire an experienced attorney to help you file for divorce.
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