Although prenups have been around for thousands 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 confident in that belief regarding the foreign agreement. Foreign marriage contracts, like cheese and fine 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. The 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 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). These 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 Thailand 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. The 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. They 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 “boilerplate” language, such as recitals, severability clauses, choice of law clauses, forum selection clauses, and/or attorney’s fees clauses, typical in premarital agreements in the United States.
The law in the United States regarding the recognition of foreign marriage contracts is sparse. New York is the exception. There are several New York cases wherein courts enforced an elected marital regime. See Stawski v. Stawski, 843 N.Y.S.2d 544 (2007) (German marital contract); Van Kipnis v. Van Kipnis, 872 N.Y.S.2d 426 (2008) (French marital contract); Cohen v. Cohen, 93 A.D.3d 506 [1st Dept 2012] (French marital contract); De Ganay v. De Ganay, 261 A.D.2d 175 [1st Dept 1999] (French marital contract); and Stein–Sapir v. Stein–Sapir, 52 A.D.2d 115 [1st Dept 1976] (Mexican marital contract).
In a more recent New York case, Karg v. Kern, 129 A.D.3d 620 [1st Dept 2015], the court did not enforce a foreign marriage contract. The wife moved to set aside the parties’ German marriage contract. The New York Supreme Court, Appellate Division, held that substantial evidence supported the referee’s finding that the marriage contract was invalid under German law based on fraud. The referee’s findings were not disturbed on appeal. The referee found that the wife was not proficient in German, was not given a copy of the contract before execution, and was not given an opportunity to consult an attorney. The referee also found that the notar was an acquaintance of the husband’s parents. The parents paid for the notar and were present at the signing. The notar did not translate the agreement from German to English. The referee also found that the husband told the wife that the only reason he wanted her to sign the agreement was to waive any claim to his father’s “vast wealth and assets.” The referee accepted the testimony of both parties’ experts that German law applied and that the contract was invalid under German law. (Husband waived his claim that New York law applied.) The Court distinguished Stawski, supra, which had recognized a German marital contract. We have yet to see whether this case foretells a change in New York’s past history of enforcing foreign marriage contracts.
A Quebec marriage contract was enforced in a recent Florida case, Moquin v. Bergeron, 338 So. 3d 918 (2022). As to the issue of choice of law, the Florida court stated:
In the case of [a] contract, Florida follows the conflicts of laws rule that the United States Supreme Court established in Scudder v. Union Nat’l Bank, 91 U.S. 406  (1875), which holds, in cases where the place of making the contract and performing it are not the same, the laws of the place in which it was made shall govern matters of execution, interpretation, and validity.
It also stated: “Generally, Florida courts enforce contractual choice-of-law provisions unless enforcing the chosen forum’s law would contravene strong Florida public policy.”
In Fernandez v. Fernandez, 194 Cal. App. 2d 782 (1961), a California court enforced a Mexican marital contract electing “the regime of separation of properties.” The wife argued that the contract was not read and explained to her as required by Mexican law. Also, because of the difference in age and experience between the parties, the husband violated his fiduciary duty to his wife. Further, she did not knowingly consent to the separate property regime or understand the consequences of such an agreement. The trial court held that the husband complied with all the procedural laws of Mexico and that there was no community property, no confidential relationship between the parties, and no fraud, deceit, or overreaching by the husband. The California Court of Appeal affirmed.
In Fernandez, the wife was 19 years old at the time of marriage, and the husband was 45. Five days after marriage, the couple moved to Los Angeles. Based on modern California premarital agreement law, it is unlikely that a Mexican marriage contract like this would be enforced.
The Religious Agreement
Many people enter into some form of religious agreement when they marry. Some courts address the separation of church and state head-on, whereas others avoid the issue. Courts that have enforced these religious agreements as contracts usually do not allow them to interfere with the jurisdiction of secular courts to divide property or award alimony.
The basis for marriage under Islamic (Sharia) law is the marriage contract or mahr (also known as a sadaq). This contract is negotiated between the prospective husband and wife before marriage. The marriage begins when the bride and groom and their witnesses sign the contract in front of a Sharia court official. The contract can include an agreement concerning property (dower rights), the custody and place of residence of children, and the wife’s ability to leave the country if the marriage is terminated by divorce or death of the husband. (A court in the United States is unlikely to enforce provisions relating to custody or immigration.)
California courts have not yet upheld a religious agreement. In In re Marriage of Dajani, 204 Cal. App. 3d 1387 (1988), the parties were married by proxy in Jordan in 1982. The wife later joined her husband in California. In 1983, they married again in a civil ceremony. In 1985, the wife filed for dissolution of marriage. According to the Jordanian proxy contract’s terms, the husband was obligated to pay the wife a dowry of approximately $1,700. The trial court found that the wife waived her claim to dowry by initiating dissolution. The wife appealed, arguing that denying dowry was against public policy because she had started the divorce.
The California Court of Appeal affirmed, holding that “[p]renuptial agreements which facilitate divorce or separation by providing for a settlement only in the event of such an occurrence are void as against public policy.” Since the wife was not entitled to receive anything except if the marriage is dissolved or husband dies, the “contract clearly provided for wife to profit by a divorce, and it cannot be enforced by a California court.”
Similarly, parties can agree to be bound by a ketubah contract under Jewish law. In In re Marriage of Noghrey, 169 Cal. App. 3d 326 (1985), the agreement stated that, in the event of divorce, the husband would give his wife his house and $500,000, or one-half of his assets, whichever was greater. The wife testified that the purpose of the ketubah was to protect her in the event of a divorce because it is difficult for an Iranian woman who is not a virgin to marry. (As part of the ketubah, the wife had been medically examined to ensure she was a virgin.) Seven months after the marriage, the wife filed for dissolution, and the trial court found the ketubah binding. The husband appealed, and the California Court of Appeal reversed, holding that the terms of the ketubah encouraged dissolution and thus were unenforceable in California. The decisions in these two cases did not cite the First Amendment to the United States Constitution as a basis for determining that the agreements were not enforceable.
On the other hand, in Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ct. Ch. Div. 2002), New Jersey enforced a mahr contract that was part of the Islamic marriage license. The court received into evidence a copy of the Islamic marriage license and a videotape of the entire marriage ceremony. The tape showed the families sitting on separate couches in a living room, negotiating the terms and conditions of the agreement. The agreement was sent to both parties for signature and was read and signed freely and voluntarily. The husband handed his wife one golden pound coin as called for in the mahr contract.
The husband attacked the contract, citing the First Amendment, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Court held that it could uphold the mahr contract without relying on religious policy or theories. The Court enforced the secular provisions of the contract.
It should be noted that the court did not address this contract as a premarital agreement per se. It did not say that this contract superseded the court’s jurisdiction to award alimony or divide property by equitable distribution. The court held that this contract, even though it was part of a religious ceremony, is enforceable because it satisfies two prongs: (1) it is capable of specific performance under neutral principles of law; and (2) once those neutral principles of law are applied, the agreement meets the state’s standards for those neutral principles of law. Id. at 98. In support of this position, the court cited Avitzur v. Avitzur, 459 N.Y.S.2d 572 (1983).
In Avitzur, a New York court held that it had the power to require the husband to give the wife a “get,” a Jewish divorce, as provided in their ketubah. This decision created controversy because, under Jewish law, the get must be given by a husband to his wife voluntarily and not by court order. In Victor v. Victor, 866 P.2d 899 (Ariz. Ct. App. 1993), an Arizona court declined to order the husband to grant the wife a get because this was not within the court’s jurisdiction. Cf. In re Marriage of Goldman, 554 N.E.2d 1016 (Ill. App. Ct. 1990) (enforcement of get); Akileh v. Elchahal, 666 So. 2d 246 (Fla. Dist. Ct. App. 1996) (enforcement of Islamic agreement).
In Nouri v. Dadgar, 245 Md. App. 324 (2020), the court addressed the issue of whether a civil court could enforce a provision in a religious marriage contract, which required one spouse to pay the other. The Court held that a “Maryland court may enforce such a provision only if, under secular legal principles, the contract satisfies the requirements of an agreement entered into by parties in a confidential relationship.” Under Maryland law, the burden of proof is on the party enforcing the agreement. The agreement will not be enforced if there is “overreaching,” which means that there “was unfairness or inequity in the result of the agreement or procurement.”
States differ in their approach to religious agreements. California and Arizona courts shy away from enforcing these agreements. New Jersey, Florida, Maryland, and Illinois take a more liberal view and allow enforcement of the secular sections of the contracts. New York courts, which tend to enforce foreign agreements, will even enforce the religious aspects of the contract. Whether these agreements will be enforced will depend more on the state where the divorce occurs than any other factor.
Lawyers in countries with marriage contracts believe that such contracts are fair. Some litigants with religious agreements may agree. Unfortunately, judges in the United States may not see it that way. It will be an uphill battle to enforce a foreign marital contract or a religious agreement in the United States. The parties should be represented by independent counsel to maximize the likelihood of enforcement. They should also serve complete financial disclosures. These disclosures should be “full, fair, reasonable.” They should accurately state the value of the parties’ assets and debts and provide several years of each party’s tax returns. The disclosures should be delivered either before the premarital agreement is presented or at the same time they are delivered. Ideally, there should be a seven-day waiting period between the day the final agreement is presented and the day it is signed. Moreover, the parties and their counsel should sign it at least a week before the wedding. With these measures, a marriage contract or religious agreement may travel better than cheese or a bottle of fine wine.