As the world becomes increasingly interconnected, more couples are entering into marriages that span national borders. Whether it’s a Silicon Valley entrepreneur marrying a European executive or a U.S. citizen living abroad with their international spouse, cross-border marriages are on the rise.
With this global trend comes a new layer of legal complexity when those relationships end, especially when a prenuptial agreement is involved. Enforcing a prenuptial agreement in an international divorce requires careful navigation of conflicting laws, procedural hurdles, and differing legal philosophies regarding marriage, fairness, and financial independence.
At the Law Offices of Diane J.N. Morin, Inc., we have extensive experience helping clients address the challenges of enforcing international prenuptial agreements, particularly in high-net-worth and cross-jurisdictional divorces.
What Is an International Prenuptial Agreement?
An international prenuptial agreement is a contract executed between two people prior to marriage that contains provisions addressing the division of property and potential spousal support in the event of divorce, and that has at least one cross-border element. That element might be:
- The nationality or residency of the parties
- The place of execution
- The location of assets
- Where the divorce ultimately occurs
These agreements may be signed in one country but later interpreted under the laws of another. For example, a French citizen and a U.S. citizen may marry in Paris with a prenup signed under French law but eventually divorce in California. In such cases, the agreement’s enforceability depends not only on its terms, but also on the laws of each relevant jurisdiction and whether the court agrees to apply them.
California Law on Prenuptial Agreements
California is among the majority of U.S. states that have adopted the Uniform Premarital Agreement Act (UPAA), which governs the creation and enforceability of prenups. Under California Family Code §§ 1600–1617, a prenup must meet certain legal standards to be valid:
- Voluntary Acceptance: Neither party may be coerced, forced, or otherwise pressured into signing the prenuptial agreement.
- Full Understanding: Both parties must have a full understanding of the agreement when they sign it.
- Independent Legal Counsel: Each spouse should have independent legal counsel or knowingly and expressly waive the right to counsel in writing.
- Financial Disclosure: The agreement must be accompanied by full and fair financial disclosure of each party’s assets and debts.
- Timeliness: The law requires that there be at least seven calendar days between when the final prenup is presented and when it is signed.
Even when those conditions are met, a California court may still decline to enforce a prenuptial agreement if it finds the terms unconscionable at the time of enforcement, particularly provisions involving spousal support waivers or extreme financial imbalances.
Enforcing a Prenup Signed in a Foreign Country
One of the most common international scenarios is when a prenup is executed overseas and later challenged or enforced in a California divorce. In these cases, courts must decide whether the foreign agreement meets California standards.
Procedural Fairness
The court will first look at procedural fairness: Was the agreement signed voluntarily? Were both parties informed and represented? Did they understand the language and the legal impact of the document? If a prenup was signed in a language other than English, California courts may require a certified translation, and the agreement may need to be authenticated through an apostille or notarial certification.
Substantive Fairness
Next, the court will consider substantive fairness. Even if the agreement complies with foreign legal formalities, the court may refuse enforcement if the result would violate California public policy. For example, by leaving one spouse completely destitute or by upholding support waivers that were not subject to proper negotiation.
A key factor is whether the prenup includes a choice-of-law clause designating which country’s laws apply. California courts generally respect these provisions unless they conflict with state policy. In practice, this means that a French prenup, which names French law, may be upheld, but a clause attempting to apply a law that allows child support waivers would be struck down.
Enforcing a California Prenup in a Foreign Divorce
Conversely, enforcing a U.S.-based prenup in another country can be even more difficult. Not all nations recognize prenuptial agreements at all. In countries with strong social safety nets or civil law systems that emphasize spousal equality, such as Germany, France, or Japan, a court may be skeptical of contracts that waive spousal support or result in large imbalances in post-divorce wealth.
Additionally, different countries apply different standards for contract validity. For instance, some jurisdictions require notarization, registration, or mandatory clauses that U.S. prenups typically lack. A foreign judge may rule that a California prenup is invalid for failing to meet local formalities.
Some mechanisms may help enforce prenups abroad. Courts may be more likely to honor provisions relating to separate property ownership than to alimony or spousal support. Some countries have treaties or participate in the Hague Convention on the Recognition of Foreign Judgments, which can assist in enforcing monetary provisions of divorce orders. However, much depends on the discretion of foreign judges and the expertise of the local attorney arguing the case.
Jurisdiction and Venue Challenges in International Divorce
A foundational issue in international divorce cases is where the case will be heard. In California, jurisdiction for divorce requires one party to have lived in the state for at least six months and in the county for at least three months before filing. However, if the other spouse resides abroad or if the marriage or prenuptial agreement was created in another country, multiple countries may claim the right to hear the case.
When two divorce actions are filed in different jurisdictions, this can lead to forum conflicts. Courts may apply the doctrine of forum non conveniens to decide which venue is more appropriate, often considering factors such as the location of evidence, language, governing law, and the residence of the parties.
In high-stakes divorces, this leads to forum shopping, where one party tries to file in a country more favorable to their position, such as one that doesn’t recognize prenuptial agreements. Courts must then determine whether to stay the proceedings, defer to a foreign court, or assert their own jurisdiction. This directly affects whether and how a prenup is enforced.
How to Protect the Validity of a Prenup in Cross-Border Cases
The best protection for an international prenup is thoughtful, proactive planning. That starts with choosing the right jurisdiction and legal team at the time of drafting. Both parties should retain local counsel in their respective countries to ensure the agreement is valid in each relevant jurisdiction.
A strong agreement should include clear choice-of-law and forum-selection clauses, anticipate cross-border movement, and be translated and notarized as needed. Where property or businesses exist in multiple countries, it may be wise to prepare mirror agreements in those jurisdictions.
Prenups should also be revisited and reaffirmed if the couple relocates abroad or if significant financial changes occur. In some cases, a postnuptial agreement or an update to an estate plan may help reaffirm the original intent and protect against later challenges.
How Diane J.N. Morin, Inc. Can Help
International divorce cases require highly specialized legal guidance. At the Law Offices of Diane J.N. Morin, Inc., we bring decades of experience in California family law, with a focus on complex marital agreements and cross-border disputes. We work closely with international legal experts, financial analysts, and forensic accountants to ensure your rights and assets are protected, whether you are enforcing a prenup from abroad or defending against one filed in California.
We help clients draft robust prenuptial agreements with enforceability in mind, advise on strategic jurisdiction issues, and represent high-net-worth individuals with property across continents. Our practice is rooted in confidentiality, sophistication, and proactive strategy, helping global families navigate the legal maze of international marriage and divorce.
Get the Help You Need for Complex Property Division
Enforcing a prenuptial agreement in an international divorce is rarely simple. Different legal systems, cultural norms, and procedural rules can dramatically alter the outcome. But with the right legal team and advanced planning, it is possible to preserve your intent, protect your assets, and resolve divorce proceedings with clarity and fairness.
If you’re considering marriage with an international partner, already have a foreign prenup, or are facing a cross-border divorce, contact the Law Offices of Diane J.N. Morin, Inc. for experienced, strategic guidance. We’re here to help you protect what matters most, wherever life takes you.