When a married couple decides to live abroad, it is advisable to establish an international marriage contract, meaning a marriage contract which could be applicable transnationally.
This could be a couple who has decided to get married and to prepare a marriage contract adapted to their current or future situation as expats or a married couple with or without a contract who wants to adapt it to their new international context.
It must be known that, by default, the legal regime of the host country may be applied to a couple who have been married without a contract.
An international marriage contract could also be useful to ensure that the marriage contract can be applied in the country of the nationality of one of the spouses, even if they won’t be living in that country.
Regarding the extreme diversity of the internal rules of law from different countries as well as private international law, it is essential to plan an international marriage contract to define which law would be applicable to the matrimonial regime chosen by the spouses.
What is an international marriage contract?
It is a contract established by a notary which will anticipate your situation as an expat, and be recognized in all foreign countries in which you may live. As an example, a marriage contract with a separation of assets may not be recognized in certain US states and it would be a community regime that may be applied. This is a type of situation where such a contract would be pertinent.
Also, in their international marriage contract, the spouses can designate their choice regarding the applicable law to their matrimonial regime.
This applicable law could be, according to article 22 of the European Regulation dated June 24th 2016 :
- Either the law of the State of residence of one of the future spouses at the time of the choice
- Or the law of the country of origin of one of the future spouses at the time of the choice
Living in France, or the fact that you or your spouse has the French nationality, is sufficient for letting you choose the French law.
The marriage contract will also have to satisfy the formal requirements of the different States where it could possibly be applied. Therefore, to make sure that a marriage contract would be recognized in Anglo-Saxon countries, two conditions have to be respected :
· The absolute necessity for each spouse to be assisted by an independent lawyer, meaning that the lawyer will advise each spouse about the matrimonial regime. Each spouse needs to have his/her own lawyer.
· The spouse’s full disclosure of all information regarding their own patrimony before the signature of the contract. Each of the spouses should be informed of the entire financial situation of his/her future spouse. (Declarations of disclosure)
It is true that this procedure could represent a certain cost and therefore seems discouraging. However, not signing a contract could more expensive, if the matrimonial regime has to be liquidated and the patrimony portioned as per a law which has not been chosen by the spouses.