International Prenuptial Agreements

Part I: Considerations for International Prenuptial Agreements

By Chaninat & Leeds

29 May 2009

Domestic Lawyers and Judges in International Practice

One of the realities of an international divorce practice is that the cases will be brought in the local family courts as there are no special family law courts for international cases.   Regardless of how well-drafted your prenuptial agreement is, the judge and lawyers presenting the case will likely have minimal experience with international issues and issues of conflict of law and other international laws will be unfamiliar to them.  A prenuptial agreement is a tool to protect your interests but the tool is only as useful as the craftsman wielding the tool; the selection of your domestic lawyer to assert your rights under a Thailand prenuptial agreement in a domestic court is extremely important. 

Common Misconceptions about Prenuptial Agreements

The internet has provided a forum for the free flow of information, which in the case of prenuptial agreements, has helped to create a number of myths based on unqualified opinions:
Myth #1:  We have an ironclad prenuptial agreement. 
Reality:  In a divorce case in a Western jurisdiction, a prenuptial can be challenged and struck down.  There are a number of grounds to invalidate a prenuptial agreement and whether the agreement is upheld is dependent on many factors other than the agreement itself.  In a courtroom, lawyers argue and present evidence and judges make decisions that can be appealed. 

Myth #2: A US prenuptial agreement that complies with the Uniform Premarital Agreement Act is strong and secure.

Reality:  The US is a common law (as opposed to civil law) jurisdiction.  This means that judges rule based on case precedent.  Every state has its own case law.  If a state has adopted a Uniform Act, this provides a foundation for the most basic issues. However, the majority of statutes and law concerning prenuptial agreements will be found in case law and not in the Uniform Act.  The law of each state will differ despite the fact that the state may have adopted a Uniform Act. 

Myth # 3: Prenuptial agreements in Thailand are of limited value.

Reality:  Thai law routinely enforces prenuptial agreements that accord with Thai law.  Unlike Western jurisdictions, a prenuptial agreement is registered with the government at the time of marriage registration.  There are circumstances where the Thailand prenuptial agreement may be invalidated but they are fewer than in Western common law jurisdictions

Difference in Reception of Prenuptial Agreement in Thailand vs. Western Jurisdictions

For a prenuptial agreement that is drafted and executed in Thailand, the Thai law is quite clear.  The prenuptial agreement will be enforced provided that the agreement complies with the standard requirements imposed by the relevant Thai laws concerning prenuptial agreements.  It may be the case that even in Thailand, the issues in the divorce case will be controlled by both the prenuptial agreement and relevant laws.  Such relevant laws include the Conflict of Law Act and, as a result, foreign (non-Thai) law often becomes an issue in divorce and family law cases. 

In Western common law jurisdictions, scrutiny of prenuptial agreements is usually more intense.  As referred to above, there is general policy in Western jurisdictions (as well as other jurisdictions) that the state has an overriding interest in certain domestic issues. In Western jurisdictions, there are a number of exceptions that do not exist in Thai law that may invalidate a prenuptial agreement, including: a) that the agreement was not fairly entered into; b) the agreement violates the public policy of the state; c) there was not a sufficient “cooling off” period; d) assets were not fully disclosed; e) one of the parties to the agreement was not represented by competent legal counsel. 

The issue of drafting prenuptial agreements in an international law context is a complex issue best left to attorneys with practical experience in litigation of international divorce cases.  The drafting of the agreement is not simply a matter of drafting a formal agreement or following the uniform rules on prenuptial agreements.  There are various issues that need to be examined and analyzed to determine the best strategy during the drafting process.  These issues include the laws of all relevant jurisdictions, the Conflict of Law provisions involved, jurisdictional issues with regard to property and persons involved, and the objectives of the parties involved.   Whether your prenuptial agreement is drafted well or not may take years to find out when it is tested in an actual court divorce hearing.  Be prudent and check the actual experience of the Bangkok US Attorney drafting the prenuptial agreement.