Foreign Marriage Contracts and Their Implications

Premarital agreements are often drafted to determine the division of property in the event of divorce. These agreements may even have provisions governing dowries or custody. Due to the popularity of online dating, more couples are meeting in foreign countries which begs the question, what happens to the premarital agreements of couples married abroad?

Implications of Foreign Marriages

Typically, a U.S. embassy or the consulate will be unable to perform marriages in a foreign country. Instead, local civil or religious officials must perform these marriages. If a marriage is conducted in a manner corresponding to a foreign nation’s laws, that marriage is likely to be recognized as valid in the United States. In order to determine the validity of a foreign marriage, one must confirm with their state’s Attorney General. Individuals contemplating a foreign marriage can also complete a Certificate of Witness to Marriage (Outside of the United States) to emphasize the validity of their union.

Prenuptial vs. Religious Agreements

There are two main categories of foreign premarital agreements: Prenuptial Agreements and Religious Agreements. Typically, prenuptial agreements are better suited to determine division of property following divorce or death than religious agreements.

Prenuptial Agreements:

• Prenuptial Agreements are marriage contracts that determine the distribution/division of property should the marriage end by divorce or death.
• These agreements should be drafted by an experienced attorney to maximize the likelihood that a U.S. court will enforce the agreement.
• In some countries, these agreements can be overridden if the court finds that doing so is in the best interest of justice (i.e. Mexico).

Religious Agreements:

• U.S courts tend not to allow these contracts to interfere with the jurisdiction of a secular court to divide property or grant alimony/spousal maintenance.
• Example: The basis for marriage under Islamic law (Sharia) is a marriage contract, called mahr or sadaaq. This contract is formed between the prospective married couple before they get married. The marriage becomes official when the couple and their witnesses sign the contract in the presence of a sharia court official. Typically, the contract will delve into the division of property and can include language regarding what happens to any dowry in the event of divorce, custody, possession of minor children, and even a spouse’s ability to leave the country. 

Is it Possible to Improve the Enforceability of Your Premarital Agreement?

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 common in U.S contracts given that people may move to regions with different laws. Some foreign countries do not need choice-of-law provisions since one code of law is applied uniformly throughout the entire country. If a couple does not live in the country in which their prenuptial agreement was drafted, or if the agreement was drafted in the distant past, a court may apply the law of the state in which their divorce suit was filed. If you have a foreign marital contract that has a choice-of-law provision, it is likely that a U.S. court will abide by that provision. 

Additional ways to promote the enforceability of a foreign prenuptial agreement include: 

• Ensure that any choice-of-law provision provides for the application of substantive and procedural law of a foreign jurisdiction.
• Consult licensed legal counsel during the drafting process. Do NOT rely solely on a notary.
• Ensure that both parties have fairly and reasonably disclosed all assets and liabilities prior to the signing of an agreement.
• The parties may select a dispute resolution process such as arbitration or mediation.
• Videotape the execution of the agreement and record the parties stating that this agreement was not procured under duress or fraud, that they understand the contract, and that they had the capacity to sign the contract.
• If possible, secure an American premarital agreement/contract

If you have further questions in regards to Foreign Marriage Contracts, consider consulting with an experienced licensed lawyer today.