Family solicitors are becoming increasingly familiar with matrimonial cases that present an international element. This can be anything from a nuptial agreement signed abroad to foreign matrimonial property regimes or orders that need to be enforced overseas. Any solicitor involved in such cases should avoid assuming that the law in question is similar to that of England & Wales and seek professional advice in the relevant country to clarify the position at an early stage before an order is made.
In our practice we are currently experiencing an increase of international cases. It is common to be contacted by foreign lawyers unfamiliar with English concepts such assharing, needs, compensation or Part III applications.
We have set out the below Q&A from relevant experts concerning issues and differences in jurisdiction that arise in many international cases.
Published: The Review, Issue 207, 2020
Monaco (Raphaelle Svara): The Monegasque International Private Law Code provides that spouses can sign a PNA before the marriage takes place. They can choose the applicable law to their marriage from the following options: the law of their domicile after the celebration of the marriage, the national law of either spouse at the time of the choice, the law of their domicile at the time of the choice, or the law of the place of celebration of the marriage. The PNA must be drafted in accordance with the formalities of the chosen law. Under Monegasque law, the PNA must be drawn up and signed before a notary. There is no statutory requirement for full and frank disclosure, and the spouses can be assisted and advised by the same lawyer.
Spain (Olalla Garcia-Arreciado): There is no statutory requirement for full and frank disclosure before you enter into a marriage contract, and this applies by analogy to PNAs, which are not regulated. Catalonia does require (Art 231.20 of the Civil Code of Catalonia, CCC) that a spouse who, on divorce, wishes to enforce an agreement must prove that the other spouse had access at the time to sufficient information about wealth, income, and financial expectations. Marriage contracts and PNAs must be set forth in a Deed signed before a Spanish notary (Art 1327 of the Spanish Civil Code, SCC). If you wish to choose the law that will rule the marriage, the Deed must be granted before the marriage ceremony takes place (Art 9.2 SCC). The Deed will expire if the marriage does not occur within one year of the time of signature (Art 1334 SCC). We find additional statutory formalities in Catalonia: a PNA will have to be signed at least 30 days before the ceremony; and the notary will have to advise both spouses separately of the consequences of the agreement and remind the parties of their obligation to provide financial information to each other. In terms of registration, the marriage will be registered at the Civil Registry if either party has Spanish nationality and/or if the marriage occurs in Spain (even if they are both foreign nationals). Every marriage entry includes a reference to the matrimonial property regime (MPR) and to any subsequent pact, variation or court order affecting the MPR (Art 1333 SCC). If the clients have concerns about their privacy, there are alternatives that would allow them to preserve the confidentiality of some parts of the agreement.
Switzerland (Roxane Reiser): Spouses may enter into any transaction with each other or with third parties, unless prohibited by law (Art 168 Swiss Civil Code, SCC). A distinction is drawn between (1) marriage contracts, electing the MPR that will apply to the parties' assets upon divorce (Art 182 SCC) or death (Art 204 al 1 SCC); (2) nuptial agreements, setting the spouses' financial and non-financial obligations vis- a-vis each other and any children (Arts 163 and 168 SCC); (3) other agreements governed by company law (eg partnership agreements); and (4) post-nuptial agreements, governing the consequences of divorce, which typically include provisions on maintenance, pensions and child arrangements (Arts 111, 287a and 296ff SCC). Each type of agreement is subject to different formal requirements. A marriage contract must be in “authentic form" and signed by the parties (Art 184 SCC). The prescribed form varies from canton to canton (eg certification by a notary in Geneva, or by an administrative office in other cantons). There are no particular requirements in relation to timing. A marriage contract can be entered into at any time before or during the marriage (Art 182 SCC). There is no registration requirement. Nuptial agreements as defined above are not subject to any formal requirements, although it is advisable that they should be in writing. Agreements governed by company law are subject to a variety of requirements beyond the scope of this article. Post-nuptial agreements must be in writing and, if they include provisions relating to matrimonial property, must either be in authentic form or ratified by the court. In the international context, it advisable for maintenance agreements (whether contained in a pre-, mid- or post-nuptial agreement) to be certified as authentic acts under Art 57 of the Lugano Convention in order to ensure that they are recognised and enforceable in other states bound by that instrument. There is no duty to provide any financial disclosure prior to entering into any of these agreements. However, when determining whether to approve a post-nuptial agreement, the court must have regard to the financial position of the parties, and thus the parties must disclose their financial position at that time. This information must then be recorded on the face of the agreement approved by the court.
Ukraine (Oksana Voinarovska): PNAs are valid and enforceable under Ukrainian law. The core principle of Ukrainian matrimonial law is the MPR of common joint property (Art 60 of the Family Code of Ukraine, FCU). The main aim of PNAs is to exclude the application of Art 60 FCU. PNAs may be entered into by couples who have applied for the registration of their marriage (ie engaged couples), as well as by married couples (Art 92 FCU). If a PNA has been entered into before the marriage registration; it will become effective from the date of such registration. Otherwise, it will come into effect after its due notarisation (Art 95 FCU). The formalities for executing PNAs are minimal. The agreement must be in writing and signed before a notary (Art 94 FCU). If the circumstances so require, a bilingual agreement may be executed. There is no statutory obligation for full and frank disclosure of assets or liabilities; the agreement may refer to abstract, undefined property. There is no requirement to demonstrate that each party has taken appropriate legal advice or that no undue pressure has been applied. If a PNA covers a foreign element, the spouses may choose the applicable law from the following options: the personal law of either spouse; the law of the state of habitual residence of either spouse; or the lex rei sitae regarding immovable assets (Arts 59 and 61 of the Ukrainian International Private Law Code Law).
Monaco (Raphaelle Svara): Art 1236 of the Monegasque Civil Code states that spouses can enter into a matrimonial agreement and include any provisions in it, as long as they do not contravene public order and morality, in particular the rights and duties resulting from marriage, the rules relating to paternal authority, legal administration or guardianship. It is therefore not possible to include provisions for child arrangements in a PNA. Regarding child and spousal maintenances, there is no Monegasque case law on the matter.
Spain (Olalla Garcia-Arreciado): Spouses can include any provision related to the marriage (Art 1325 SCC). In the event of divorce, the court will enforce the provisions agreed provided they are not harmful for the children or prejudicial for one of the spouses (Art 90 SCC) - ie, the court will retain discretion in relation to any provisions that are not part of the MPR. In Catalonia any waive of rights will have to be reciprocal (Art 231.20.3 CCC), and this tends to be the interpretation of most courts throughout Spain too. It is important that these provisions are well drafted and fair.
Switzerland (Roxane Reiser): Yes. A post-nuptial agreement almost always includes provisions for spousal maintenance, child maintenance and child arrangements. Nuptial agreements as described in question 1 above may or may not do so.
Ukraine (Oksana Voinarovska): PNAs deal mainly with property issues. The primary purposes are to regulate the MPR and the subsequent division of assets, regulating or excluding the division of common joint property arising from pre-marital cohabitation; and to explicitly choose the governing jurisdiction and applicable law. PNAs may also cover spousal maintenance. They may specify the obligation of one spouse to provide maintenance to the other regardless of the latter's earning capacity and financial status (Art 99 FCU). However, they may not regulate personal relations between the spouses norwith their children (Art 95 FCU). PNAs may also deal with property rights and obligations of the spouses as parents, but cannot narrow the scope of statutory rights of the children. Child maintenance is usually governed by a separate agreement on alimony.
Monaco (Raphaelle Svara): Under Monegasque law spouses are necessarily subject to an MPR, which will be liquidated in the event of the dissolution of the marriage (by death or divorce). There is no legal obligation for the spouses to opt for an MPR. In the absence of choice, the spouses are subject to the Monegasque MPR of separation of assets.
Spain (Olalla Garcia-Arreciado): Every marriage must have an MPR. If the spouses fail to make a choice, one will apply by default. The default MPR varies: most regions in Spain apply a community of assets (Art 1316 SCC), but in Catalonia and the Balearic Islands the MPR of separation of assets applies.
Switzerland (Roxane Reiser): No. Spouses are subject to the default MPR of “participation in acquisitions" (roughly, a sharing of the fruits of the marriage) unless they elect one of the two other matrimonial regimes available under Swiss law, namely common property and separate property. The election can be made by way of a marriage contract at any time before or during the marriage.
Ukraine (Oksana Voinarovska): In Ukraine, an MPR automatically applies to every marriage. There is a presumption of community on all assets acquired during their marriage, although several exceptions may apply (Art 60 FCU). As a rule, both spouses are entitled to equal shares on the division of their marital assets (Art 70 FCU). A PNA may prevent such common joint property regime from applying (Art 97 FCU).
Monaco (Raphaelle Svara): The Monegasque International Private Law Code provides that spouses can enter into a PNA either before or after the ceremony. Spouses are also entitled to vary their PNA and even to change its applicable law. For instance, it is possible to enter into an Italian-law separation before the celebration of the marriage and to decide, a few years later, to change it and to enter into a Monegasque MPR of universal community.
Spain (Olalla Garcia-Arreciado): A marriage contract or PNA can be entered into before or after the ceremony of marriage (Art 1326 SCC). In Catalonia the provisions applicable in the event of breakdown of the marriage must be agreed before the marriage occurs (see question 1 above). Spouses are also free to vary the agreement or contract at any time (Art 1325 SCC). Any post-nuptial agreement or variation must be granted in a Deed before a notary public and will take effect from the time of signature, but it will not modify any prior obligations towards third parties (Art 1317 SCC).
Switzerland (Roxane Reiser): Yes. As far as matrimonial property is concerned, the parties can elect a different MPR at any time during the marriage. The spouses can choose that their choice should have retrospective effect from a certain date (eg the date of the marriage), provided that this does not affect creditors' rights (Art 193 SCC). As for post-nuptial agreements (whether varying a pre-existing agreement or not), they are permissible but only take effect when approved by the court.
Ukraine (Oksana Voinarovska): A couple are entitled to enter into a pre-nuptial agreement only after applying for marriage registration. A post-nuptial agreement may be concluded during the marriage and at any time before a divorce is formalised (Art 92 FCU). Spouses have the right to amend the PNA by mutual consent. A deed of variation must be signed before a notary. Upon the request of either spouse, the PNA may be amended by a court decision if necessary, in order to protect the significant interests of the applicant spouse, of minors or of adult children with lack of capacity (Art 100 FCU).
Monaco (Raphaelle Svara): Monegasque courts are bound by the MPR chosen by the parties but will retain a substantial degree of discretion in relation to provisions that engage public policy considerations (see question 2 above).
Spain (Olalla Garda-Arreciado): Spanish courts are absolutely bound by the MPR chosen by the parties and cannot depart from it when allocating and distributing the marital property. Courts will retain a substantial degree of discretion in relation to any other provision (see question 2 above).
Switzerland (Roxane Reiser): The court will approve a post-nuptial agreement governing the effects of the divorce if it is satisfied that the spouses have reached the agreement of their own volition and after careful reflection, and that the agreement is clear, complete and not manifestly inequitable (Art 279 SCPC). In addition, the court must be satisfied that the provisions of the agreement do not contravene norms of Swiss public policy, including mandatory provisions on the equal sharing of occupational pensions (Art 280 SCPC) and the best interests of children (Art 296 SCPC).
Ukraine (Oksana Voinarovksa): Spouses and Ukrainian courts are fully bound by PNAs. However, PNAs can be challenged in court on the grounds that it places one of the spouses in an “extremely unfavourable financial position" (Art 93 FCU). The central issue for the court will be whether the agreement has put either spouse in a position significantly less favorable than that which the FCU provides.
Time is of the essence when dealing with international matrimonial cases. You may be involved in a jurisdictional race or drafting an order that needs to be fully enforceable abroad. You must act fast and instruct a trustworthy local lawyer who can work with you from the outset and throughout.
We are very grateful to Raphaelle Svara from CMS (Monaco), Olalla Garcia-Arreciado from Child & Child (Spain), Roxane Reiser from 1 Hare Court (Switzerland) and Oksana Voinarovska from Vasil Kisil & Partners (Ukraine) for their assistance in writing this article.