If my wife and I get married and sign an agreement in regards to the marriage in South Africs will it be valid if we move to the USA? What happens if we get divorced? Will the prenup be enforceable?
Assume that all other legal requirements for a legal contract have been met.
A prenup can be signed anywhere. But it will be evaluated for legal validity based upon the law of the place where it is signed, unless it says otherwise, and the place where the divorce takes place.
If the prenup is not enforceable, the reason will generally not be merely that it was signed in another jurisdiction. But it might be valid or enforceable because the formalities required in the jurisdiction of the divorce were not met at the time it was signed (e.g. if financial disclosures were not made, or one spouse didn't have access to legal counsel).
For example, Colorado is one of two states that has adopted the latest version of the Uniform Premarital and Marital Agreements Act, which has provisions related to "governing law", "formation" and to "enforceability."
The governing law provision, Colorado Revised Statutes § 14-2-304, which is usually applied at the time of a divorce, states:
(1) The validity, enforceability, interpretation, and construction of a premarital agreement or marital agreement are determined:
(a) By the law of the jurisdiction designated in the agreement if the jurisdiction has a significant relationship to the agreement or either party at the time the agreement was signed and the designated law is not contrary to section 14-2-309 or to a fundamental public policy of this state; or
(b) Absent an effective designation described in paragraph (a) of this subsection (1), by the law of this state, including the choice-of-law rules of this state.
The formation requirements are set forth at Colorado Revised Statutes § 14-2-306 which state:
A premarital agreement or marital agreement must be in a record and signed by both parties. The agreement is enforceable without consideration.
The enforcement provisions at Colorado Revised Statutes § 14-2-309 states:
(1) A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves:
(a) The party's consent to the agreement was involuntary or the result of duress;
(b) The party did not have access to independent legal representation under subsection (2) of this section;
(c) Unless the party had independent legal representation at the time the agreement was signed, the agreement did not include a notice of waiver of rights under subsection (3) of this section or an explanation in plain language of the marital rights or obligations being modified or waived by the agreement; or
(d) Before signing the agreement, the party did not receive adequate financial disclosure under subsection (4) of this section.
(2) A party has access to independent legal representation if:
(a) Before signing a premarital or marital agreement, the party has a reasonable time to:
(I) Decide whether to retain a lawyer to provide independent legal representation; and
(II) Locate a lawyer to provide independent legal representation, obtain the lawyer's advice, and consider the advice provided; and
(b) The other party is represented by a lawyer and the party has the financial ability to retain a lawyer or the other party agrees to pay the reasonable fees and expenses of independent legal representation.
(3) A notice of waiver of rights under this section requires language, conspicuously displayed, substantially similar to the following, as applicable to the premarital agreement or marital agreement:
"If you sign this agreement, you may be: Giving up your right to be supported by the person you are marrying or to whom you are married. Giving up your right to ownership or control of money and property. Agreeing to pay bills and debts of the person you are marrying or to whom you are married. Giving up your right to money and property if your marriage ends or the person to whom you are married dies. Giving up your right to have your legal fees paid."
(4) A party has adequate financial disclosure under this section if the party:
(a) Receives a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party; or . . .
(c) Has adequate knowledge or a reasonable basis for having adequate knowledge of the information described in paragraph (a) of this subsection (4).
(5) A premarital agreement or marital agreement or amendment thereto or revocation thereof that is otherwise enforceable after applying the provisions of subsections (1) to (4) of this section is nevertheless unenforceable insofar, but only insofar, as the provisions of such agreement, amendment, or revocation relate to the determination, modification, limitation, or elimination of spousal maintenance or the waiver or allocation of attorney fees, and such provisions are unconscionable at the time of enforcement of such provisions. The issue of unconscionability shall be decided by the court as a matter of law. . . .
(8) A premarital or marital agreement, or an amendment of either, that is not in a record and signed by both parties is unenforceable.
The enforcement provisions contemplate situations where one spouse (often called the "poor spouse") can enforce the agreement if desired, but the other spouse (often called the "rich spouse") cannot enforce it.
Colorado Revised Statutes § 14-2-310 meanwhile, sets forth certain prenuptial agreement provisions that aren't enforceable even if the execution of the agreement meets all of the requirements:
(1) In this section, "custodial responsibility" means parental rights and responsibilities, parenting time, access, visitation, or other custodial right or duty with respect to a child.
(2) A term in a premarital agreement or marital agreement is not enforceable to the extent that it:
(a) Adversely affects a child's right to support;
(b) Limits or restricts a remedy available to a victim of domestic violence under law of this state other than this part 3;
(c) Purports to modify the grounds for a court-decreed legal separation or marital dissolution available under law of this state other than this part 3;
(d) Penalizes a party for initiating a legal proceeding leading to a court-decreed legal separation or marital dissolution; or
(e) Violates public policy.
(3) A term in a premarital agreement or marital agreement which defines the rights or duties of the parties regarding custodial responsibility is not binding on the court.
Colorado is more stringent than most U.S. states in the requirements it imposes to enforce prenuptial agreements, so an agreement that met its standards would be valid in almost every U.S. state. Most, but not all, U.S. states, have enacted an earlier version of the uniform act with fewer formal requirements.
