International Family Law Prenup Agreements are becoming increasingly common. International Family Law Prenup Agreements also bring complex jurisdictional analyses into play. In today’s blog dual called international family lawyer Sophie Bartholomew explains how it works.
International Couples and Prenuptial Agreements: Which Country’s Law Should Apply?
Getting married is a major life decision. For couples who live, work, or own property in different countries, it can also create important legal questions.
This is especially true for high-net-worth couples. Maclean Law focuses on ultra high net worth international family law matters on both financial and child parenting issues.
Imagine a couple planning to live in Vancouver after getting married. One spouse is Canadian and the other is a UK citizen. They own a home in Vancouver, investments in the United States, and a family business in London.
Vancouver International Family Law Prenup Agreements 1-877-602-9900
They are planning a wedding. But they also need to consider something less exciting:
If their relationship ends, which country’s laws will determine what happens to their property?
That question can become complicated very quickly.
At MacLean Law, we regularly deal with family law matters involving high-value assets, family businesses, trusts, international property, and multiple legal jurisdictions.
For an international couple, a carefully prepared prenuptial or marriage agreement can help create greater certainty about how property and debt will be dealt with if the relationship ends.
What Is a Prenuptial Agreement?
A prenuptial agreement is an written, signed and witnessed agreement made before marriage.
In British Columbia, these agreements are generally called marriage agreements. They can address important financial issues between spouses, including how property and debt will be dealt with if the relationship ends.
Under BC’s Family Law Act, spouses can agree to divide property and debt equally or unequally. They can also agree to include or exclude certain property or use a different method of valuing property.
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For a high-net-worth couple, a marriage agreement may address:
- Family businesses and private company shares
- Investment portfolios
- Real estate
- Family trusts
- Inheritances
- Property owned before marriage
- Wealth acquired during the marriage
- Debt
- Property located outside Canada
For international couples, however, there is another important question: Which country’s law will apply?
Why Does the Choice of Law Matter?
Family law differs from country to country.
The rules that apply to a family business, inheritance, investment, trust, or real estate in Canada may be very different from those in the United States, United Kingdom, Hong Kong, Singapore, France, or another jurisdiction.
Consider a couple where one spouse owns a company in California and the other has a significant investment portfolio in Vancouver.
They may have very different expectations about what happens to those assets if they separate.
A marriage agreement can help address those expectations. However, the agreement needs to be carefully considered in light of the laws that may apply to the couple and their property.
Can an International Couple Choose Which Law Applies? 1-877-602-9900
In some circumstances, yes.
BC’s Family Law Act contains specific rules governing jurisdiction and choice of law in property and debt disputes. Sections 106 to 108 address when BC courts may hear a property dispute, how the law governing the spouses’ relationship is determined, and the effect of agreements concerning the division of property and debt.
However, choosing another country’s law does not mean that every court in every country will automatically enforce the agreement.
The law that properly governs the relationship can still affect how an agreement is enforced.
This is one reason international marriage agreements require careful planning. It is not enough to simply state that another country’s law applies and assume the issue is settled.
What If the Couple Does Not Choose a Law?
The law may determine which jurisdiction’s rules apply.
Under section 107 of BC’s Family Law Act, the “proper law” of the relationship generally begins with the law of the jurisdiction where the spouses most recently had their common habitual residence.
There are additional rules where that jurisdiction is outside Canada or where the spouses did not have a common habitual residence. In those circumstances, the legislation considers other connections to the relationship.
In simple terms, where you live and the countries most closely connected to your relationship can matter.
That is why international couples should think about jurisdiction before a dispute arises.
What About Assets Outside Canada?
For high-net-worth couples, this can be one of the most important issues. A couple may have:
- A home in Vancouver
- A vacation property in California
- A business in London
- Investments in Hong Kong
- A family trust in another jurisdiction
BC’s s.109 Family Law Act specifically addresses property located outside British Columbia, known as extraprovincial property. It provides that, where the Supreme Court has authority under the Division, it may make orders concerning the ownership and division of property located outside BC. There are additional requirements for certain orders, including consideration of whether an order would be enforceable in the jurisdiction where the property is located.
There can be practical challenges when property is located in another country. A BC court order may need to be recognized or enforced in that jurisdiction.
This means international family law is not only about identifying what assets a couple owns. It is also about where those assets are located and how legal decisions may be enforced.
Your Marriage Agreement Should Reflect Your Real Life
International couples should think beyond their current circumstances. Before preparing an agreement, consider:
- Where do we live now?
- Where will we live after marriage?
- Could we move to another country?
- Where are our businesses located?
- Where are our investments and real estate located?
- Do we have trusts or inherited wealth?
- Which countries have significant connections to our relationship?
The answers can affect how a marriage agreement should be structured.
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A marriage agreement is stronger when both spouses understand what they are agreeing to.
Under BC’s Family Law Act, a court can set aside all or part of a written property agreement in certain circumstances. These can include significant non-disclosure, taking improper advantage of a spouse’s vulnerability, or a spouse not understanding the nature or consequences of the agreement.
For high-net-worth couples, proper financial disclosure can therefore be particularly important.
This may involve identifying significant assets, debts, business interests, trusts, and other financial interests.
The goal is not simply to create a document. It is to create an agreement that both spouses understand and that has been carefully prepared for the circumstances in which it may eventually be used.
What If You Already Have a Prenup From Another Country?
If you signed a prenuptial or marriage agreement in another country, do not assume that it will automatically operate in British Columbia exactly as you expect.
This is particularly important if your circumstances have changed. For example, you may have:
- Moved permanently to BC
- Purchased property in Canada
- Started a Canadian business
- Received an inheritance
- Created a trust
- Acquired significant investments
- Had children
- Changed your country of residence
A review of an existing agreement can help identify potential issues before they become part of a separation dispute.
When Should You Start?
Not a week before the wedding.
International marriage agreements should be discussed well in advance. Both spouses need time to understand the agreement, gather financial information, obtain independent legal advice, identify relevant jurisdictions, and make changes where necessary.
Starting early also gives couples time to have a thoughtful conversation about their financial expectations without the pressure of an approaching wedding.
International Family Law in Vancouver
At MacLean Law, our Vancouver family law team works with complex family matters involving high-net-worth assets, international relationships, jurisdictional disputes, foreign orders and agreements, and property located outside Canada.
Our approach is practical and strategic. We look at the bigger picture rather than treating each asset or legal issue in isolation.
For an international couple, a marriage agreement is not simply about planning for the possibility of separation. It is about creating greater certainty before uncertainty arrives.
If you or your future spouse has significant assets, business interests, property, citizenship, or other connections outside Canada, obtaining legal advice before signing a marriage agreement can help you understand your options and plan appropriately.
D.L v M.Y dealt with an international family law dispute over child custody, child support, spousal support and family property division and made the unusual but sensible decision to allocate the issues of child support and child custody to BC while deciding Chinese courts would deal with interpretation of the parties prenuptial agreement on the issue of property division as well as spousal support.
This article is for general information only and is not legal advice. International family law is highly fact-specific, and the law that applies will depend on the circumstances and jurisdictions involved. Contact us for a focused analysis of your case.
