SPRING 2023 9
The Foreign Marriage Contract
Most countries allow a couple to enter into a marriage contract
whereby a couple can elect a preset marital regime. For example,
in France, the marital regimes are séparation de biens (separate
property), communauté réduite aux acquêts (community
property plus separate property), and communauté universelle
(all community property). ese contracts are not the same as
premarital agreements as we understand them in the United
States. In a marriage contract, the couple elects a regime such as
separate property, separate property with appreciation, or
community (shared) property. France, Germany, Italy, Mexico,
South Africa, Switzerland, and ailand are all examples of
countries that allow marriage contracts.
A couple living in such a jurisdiction meets with a notaire
who advises them on their rights. In most countries, the
notaire (notar in Germany) is an attorney trained in the law
relating to marital contracts. e parties do not usually have
the agreement reviewed by independent counsel. If a party
wants to have the agreement enforced in the United States,
both parties should be represented by independent counsel.
ey may wish to have the added protection of executing an
agreement written according to the law of the state where
they expect to live. Marriage contracts do not have “boiler-
plate” language, such as recitals, severability clauses, choice of
Although prenups have been around for thou-
sands of years, courts in the United States have
had to review foreign premarital agreements
only recently. In a shrinking and mobile world,
premarital agreements drafted in foreign
countries will be more frequently tested in our courts. When
we draft premarital agreements, we assume they will be
enforced. However, we have no basis to be condent in that
belief regarding the foreign agreement. Foreign marriage
contracts, like cheese and ne wine, do not travel well.
Most countries do not have premarital agreements as we
understand them in the United States. Many countries’ laws
allow couples to enter into a marriage contract where they
elect a marital regime. England is the exception. It is only
recently that premarital agreements have been recognized.
English courts are much like our “second look” states in that
they will examine the issue of unconscionability both at the
time of execution and enforcement of the agreement.
Occasionally, the family lawyer is asked to evaluate
whether a foreign marriage contract is enforceable. Foreign
marriage contracts often do not include choice of law clauses.
e contract consists of a one-page election to a marital
regime. As discussed below, the enforceability of an election
to a regime is hit or miss.
The Traveling Prenup
BY PETER M. WALZER
Published in Family Advocate, Volume 45, Number 4, Spring 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
