So you have decided to move to the United States as an international couple, and you are not sure which state to choose for your prenup. There are a few factors that may make choosing your state a little… er, complicated:

Like in the USA, there are certain rules to which these agreements must conform in order to be upheld and considered valid. For example, in the past an agreement could be thrown out if it was found to have caused “injustice”. However, as of 2001, only cases of “serious injustice” warrant setting aside a prenuptial agreement. This reform was made in order to provide couples with greater certainty around the enforceability of their premarital contracts. Going forward, most prenuptial agreements in New Zealand are upheld and are rarely set aside.

Couples seeking prenuptial agreements in New Zealand who have ties to other countries should take note of one unusual and noteworthy stipulation: the prenup is not enforceable if the partners formally agreed prior to or during their wedding that their marital property will be subject to the property law of a country other than New Zealand. However, such an agreement is only considered legitimate if it was made in writing or in another legally valid way in accordance with the laws of the relevant country.

Prenups in England and Wales: Prenup laws are complex and unsettled in both of these countries. In the past, these countries’ stance on prenuptial agreements was that they were not valid and would not be enforced. Nowadays, although there is no legislation in which permits or enforces these agreements, there is a new law in effect which provides detailed stipulations for the financial consequences of divorce. This law also takes marital contracts into account (Morley, 2022).

The courts now sometimes uphold prenuptial agreements, but often they don’t. When it comes to divorce, Courts in England and Wales are interested in fairness above all else, and they are therefore is more interventionist than elsewhere. Couples seeking prenups in these countries should be aware that premarital contracts are not legally binding and may not be upheld (Morley, 2022).

Prenups in Scotland: In contrast to its siblings to the south, Scotland does have legislation permitting prenuptial agreements (Morley, 2022), which makes them legally binding (Rivers, 2020). However, the Scottish courts still enjoy a large degree of freedom in governing the enforceability of prenuptial agreements. Like in England and Wales, fairness is key: the courts are instructed to divide marital property in a way that is fair and equal–or in “such proportions as are justified by special circumstances”. A prenup is one of the special circumstances this clause in Scottish law refers to (Morley, 2022).

However, if the courts examine a prenup and find it to be unfair, they are able to overrule it. Scottish courts also often look to prenuptial agreements for spousal support stipulations as well as guidance on rights of succession if one spouse dies during the marriage.

Prenups in Northern Ireland: Prenuptial agreements in Ireland are treated relatively similarly to how they are treated in Wales and England. Historically, they were considered to be going against public policy and were therefore not enforceable. However, the courts’ approach has shifted in recent years; in 2010 they decided that as long as a prenuptial agreement was entered into a.) with full knowledge by both parties of the implications of the agreement and b.) after both parties provided full financial disclosure, and as long as the agreement is not ‘obviously unfair’ (Devlin, 2022).