Expat couples: Why you need a marriage contract

Why is a prenuptial agreement important for expat couples?

While a prenuptial agreement is not mandatory, it is strongly recommended. Any legally married couple is automatically subject to a matrimonial regime, and without a prenuptial agreement, that of the country where the marriage took place applies by default. This can become a problem if the host country's legislation is restrictive or includes provisions that constrain one or both spouses.

For example, some countries' default matrimonial regime provides for the division of assets acquired during the marriage (the United States, for instance). This division, decided by a judge, may not suit either spouse, especially if one acquired most of the shared assets. In Denmark, assets are considered jointly owned not only after the marriage, but before it as well. Without a prenuptial agreement specifying how assets will be divided, the default Danish system applies.

Another example: some laws restrict one spouse's rights, typically the wife's. In certain countries, a husband can legally prevent his foreign wife from returning to her home country or traveling abroad, and this restriction extends to their children. Therefore, it is essential to understand the host country's legislation before getting married there. A prenuptial agreement can help you avoid the default matrimonial regime and the foreign country's laws, provided it is carefully drafted (and bearing in mind that international recognition of such agreements is not always guaranteed).

5 main matrimonial regimes around the world

Separation of assets: each spouse retains their own assets, both during the marriage and in the event of divorce. This is the default system in many countries, including Morocco, Senegal, the United Arab Emirates (UAE), Japan, and Malaysia.

Separation with court distribution: each spouse retains their own assets during the marriage. In the event of divorce, the court divides the assets between the former spouses. This is the default system in Canada (except Quebec), New Zealand, and the United States.

Deferred community of property: assets acquired before and during the marriage are jointly owned by both spouses. This system is found notably in Finland and Colombia.

Community of acquired assets: assets remain separate before the marriage, then become shared after it (France, Angola, Thailand, Portugal, Côte d'Ivoire, etc.)

Participation in acquired assets: assets remain separate during the marriage, with a community of acquired assets applied in the event of divorce (Taiwan, Germany, Greece, Turkey, etc.)

Is a prenuptial agreement automatically recognized in the host country?

A prenuptial agreement provides some protection, even if it is not automatically recognized in the country where you settle. This raises the question of how the agreement is drafted and how foreign courts interpret it. The criteria defining a valid prenuptial agreement can vary from one country to another. For example, prenuptial agreements in Anglo-Saxon countries generally include provisions that are absent from French marriage contracts. Another difference: some agreements are broader in scope than others, going as far as to cover the division of finances in the event of divorce, or child custody arrangements.

These differences can create conflicts over whether a prenuptial agreement is recognized as drafted by the couple. That said, drawing up two separate agreements (one under the law chosen by the expats and one international agreement) is not advisable, as multiple contracts increase the risk of conflicts between the laws of different countries. Instead, we recommend drafting your prenuptial agreement with a professional who ideally has specific expertise in expat situations.

Should you opt for an international prenuptial agreement?

Married couples planning to move abroad can choose to rely on a single document: an international prenuptial agreement. This type of agreement has the advantage of conforming, in both form and substance, to rules generally recognized worldwide. It is not foolproof, however. Avoid including overly complex or highly specific provisions that could be disregarded by the courts of the host country.

To make an international prenuptial agreement as effective as possible, it needs to be as precise as possible. Don't limit it to simply choosing which country's legislation will govern the marriage. The agreement can also specify each spouse's rights, the division of responsibilities between them, a detailed breakdown of assets and how they are to be shared, provisions in the event of divorce, and more.

Marriage and your host country's law: What should you watch out for?

The type of union you choose can significantly affect your options (available visas, expat rights and obligations) and your life after the wedding. Therefore, research the host country's marriage laws before tying the knot to avoid unpleasant surprises. Civil marriage is generally considered the only legally recognized form of union worldwide, but other types of partnership may also be legally recognized by the host country. Moreover, the country where the union takes place may require specific documents. Some, for example, require a certificate of no impediment to marriage abroad.

It is therefore important to find out, before getting married, which forms of union are legally recognized in your host country. What are the implications of choosing one type of union over another for an expat couple?

Prenuptial agreements: what Australian law says

An expat couple (for example, a mixed couple with one foreign spouse and one Australian resident or citizen) can draw up a prenuptial agreement specifying that they choose to apply Australian law. Australia recognizes civil marriage (legal marriage) for both opposite-sex and same-sex couples, as well as de facto relationships. As in many countries, civil marriage is the union that allows a couple to have their rights formally recognized and to benefit from residence permits reserved for civilly married couples.

The Australian government recognizes a de facto relationship between two people who are of legal age to enter into a union in accordance with the law (with no prohibited relationship involved). The couple must have been together for at least 12 consecutive months. The foreign de facto partner can apply for a Partner (Provisional) visa (subclass 309), which allows them to temporarily immigrate to Australia to live with their partner (de facto or legally married spouse), whether that partner is an Australian citizen, a permanent resident, or a New Zealand citizen eligible to reside in Australia.

Prenuptial agreements: what Canadian law says

An expat couple can also choose to draw up their prenuptial agreement under Canadian law. Canada recognizes civil marriage for both opposite-sex and same-sex couples, as well as common law unions. Civilly married expats have an easier time getting their marriage recognized and completing the necessary procedures (such as applying for a residence permit), as they simply need to present their marriage certificate. Common-law couples, on the other hand, must prove they have been in a continuous relationship for at least one year.

Canada defines a common law union as a situation in which two people are in a conjugal relationship. For it to be legally recognized, the couple must have been living together continuously for at least one year. A separation of 90 days or more breaks their status. Individual provinces may extend this requirement, as common law unions fall under provincial jurisdiction (whereas marriage falls under federal jurisdiction). In Ontario and Manitoba, for example, the required period rises to 3 years, while in British Columbia it is 2 years. The Canadian Encyclopedia notes that "common-law partners have the same legal, parental, and financial rights and responsibilities as married couples."

It is worth noting that Canada prohibits polygamy. Many countries take the same stance (the United States, Brazil, Côte d'Ivoire, European countries, Nepal, China, etc.). These prohibitions are tied to recognizing women's rights and gender equality.

What are the implications for expats?

A union entered into abroad that does not comply with Canadian law will not be recognized in Canada. The same applies to a common-law relationship that does not meet the criteria for legal recognition. In these cases, expats cannot use their relationship status to obtain a residence permit.