Wywiad Anny Stępień-Sporek w lifestyle’owym litewskim magazynie „Titanium”

Wywiad Anny Stępień-Sporek w lifestyle’owym litewskim magazynie „Titanium”

Autor: kancelaria SPS w Aktualności 23 10 2016

Mamy przyjemność poinformować, że w najnowszym wydaniu lifestyle’owego magazynu „Titanium luxury lifestyle magazine” wydawanego na Litwie oraz innych krajach nadbałtyckich, ukazał się wywiad z Anną Stępień-Sporek w którym wskazano szereg porad prawnych dotyczących zawierania ślubu z obcokrajowcą oraz roli intercyz jako środka zabezpieczenia sytuacji majątkowej małżonków pochodzących z innych krajów.

Poniżej fragment wywiadu w języku angielskim:

  1. First of all – can you, please, explain, in what cases lawyers recommend to sign a marriage contract? Can you say that in case of getting married with a person from another country, marriage contract is especially important? In what cases such contract is not necessary at all?

First of all, it should be clarified what lies behind the term “marriage contract”, which under American law generally differentiates “prenuptial agreements” or in more modern terms “premarital agreements”, concluded by the prospective spouses before they are married and “postnuptial agreements”, which are made during the marriage. These two types of contract, which can be easily defined as the most unromantic documents, typically include the terms for property distribution in the event of the marriage terminates. The term “martial agreement” is more likely used in Europe.

It is generally believed that proposal for the marriage contract demonstrates lack of trust to another spouse and proves cynical approach towards the marriage, seen only as an economical project. Going beyond this popular opinion, martial agreements can be very useful not only in case of divorce but at the same time, they may have an important role regarding other financial aspects of life.

What comes to mind first while analyzing the main reasons why prospective spouses decide to conclude the marriage contract, is the significant wealth of one of the fiancé, who wants to protect himself from loosing large part of his assets in the event of divorce. It often happens that parents of the prospective spouse are main initiators of the idea of creating such an agreement, wanting their child to be fully protected when they decide to give young couple financial aid or an asset in the form of real estate. Under American Law, marriage contract can be also very useful in the situation when marrying couple has children from prior marriages and want clarify mutual financial retaliations.

On the one hand marriage contracts secure each spouse’s financial interests in the event of the divorce, but on the upside, they can serve as an important tool to protect the spouses from the financial troubles and unforeseen negative circumstances. A good example may be debts running up by one of the spouse and its repayment which can be separated by concluding marriage contract from the spouses’ common property. It is also recommended to conclude the martial agreement when one of the spouse is planning to start business activity which can potentially bring financial problems in the future.

Martial agreements are especially important considering the mixed marriages, not only because the prospective spouses can secure their future financial situation, but mainly because they should fix the law applicable to their marriage. It may happen that the legal construction of the family law of one country will be better for the future spouses for the practical reasons than the legal family regulations of the other one. Taking the decision of concluding marriage contract by foreigners can resolve many problems with the law applicable to specific situation as well as facilitate facing many legal barriers.

It may seems that the martial agreements are not necessary for those of the prospective spouses that have the assets on comparable level, don’t want to provide to their marriage the system of separate estates and don’t ran any business activity. However, it all depends on the particular situation of the future spouses and from the legal point of view, it is always better to create some legal security in order to protect one’s interests. But looking from the sociological side as well as bearing in mind that marriage contracts are still taken by the public as an agreement based on the suspicious reasons, proposal of the spouse to signing such an agreement may become bone of contention between future spouses.

  1. A marriage contract in Latvia defines only property relations between spouses. To stipulate such things as financial maintenance of a spouse or kids during marriage or compensation for an affair a couple should sign another agreement. What is the situation like in other European countries? As far as I know a marriage contract in USA can include even such points as the time spouses should spend together every day. It looks like the contract defines not only property relations but regulates the whole life together. How common are these detailed contracts in USA and Europe? How detailed can they be?

Both English and American law systems seem to have similar understandings of premarital agreements and they show many differences when we compare them to the meaning and consequences of marital agreements in Europe. However, while the European approach presents significant insight into the purpose, limits and the effects of marriage contracts, this approach is not well-known as the American one, made so famous through Hollywood examples, like Hollywood actress Catherine Zeta-Jones reportedly contracted with actor Michael Douglas to receive $2.8 million per year of marriage upon divorce, and if she proved his infidelity, for an additional $5 million.  In the United States, spouses have freedom of contract when it comes to premarital agreements. Spouses may use marriage contracts not only to assign a piece of property, opt out of the default property distribution regime of their state, establish how property is held during the marriage and its effect on third persons, such as creditors but also include provisions that determine the manner of assets distribution during the divorce caused by the marital infidelity of one of the spouses. For example, a homemaker may include a provision that if his or her spouse is unfaithful, and therefore caused the divorce, that spouse must pay a significant portion of the assets. Under American law, parties to the premarital agreements have almost full discretion over the contents and scope of their agreement, which is the main difference comparing to the European (Continental) Law System, characterized by the relatively narrow scope of the provisions permitted by law. This has also a direct effect on the form of the premarital agreements. Contrary to many European Legal Systems, American Legal System allows to conduct the marriage contract with any help of lawyers or other authorities, while in Europe, the content of the agreement is usually determined by law and in certain countries it is required to be made in the form of a notarial deed for its validity.

Therefore, the American philosophy of freedom of contracts had a great impact on the legal construction of premarital agreements, which can regulate a wide range of family issues, ranging from property relations, to reflect on other lifestyle matters of future spouses.

Moving onto the European view on the martial agreements, first of all it should be noticed that the martial agreement has a different meaning in Europe than in United States, and differing meaning within Europe as well. In certain European countries, all of the contracts between spouses are called martial agreements. The permissible scope of the martial agreement also differs from European country to country. In some countries, a martial agreement concerns only the relations between spouses, while in others, the agreement may regulate the consequences of a spouse’s death. Furthermore, in some countries, there are only a few models of property regimes from which spouses may choose. In other countries, spouses are not obliged to follow the statutory models of the regimes and have more freedom with regard to the content of their martial agreements.

Nonetheless, two fundamental approaches to martial agreements can be distinguished in Europe. According to the first approach, the martial agreement is a kind of general agreement, constructing the rules of the classification of property and the relations of the spouses, but on the other hand, not regarding any particular property. The second approach is based on the rule that each contract between spouses is a martial agreement, even if it concerns only certain chattels belonging to one spouse.

Although premarital agreements are more popular in the United States than in Europe, they are still not popular in both Continents as it could be. They might be rare in the United States because they need not necessarily be drafted for a higher income prospective spouse to avoid an unfavorable statutory default regime. This is because the higher income earner would prefer an equitable distribution regime, which often results in an unequal distribution, rather than community property which instead results in an equal division of assets. Many European countries, on the other hand, have statutory default regime of some type of community property, which might sooner prompt a higher income earner to seek a premarital agreement.

Taking into account both American and European use of martial agreements, many commentators suspect that their popularity will increase in the near future.

  1. There is an English-American law system (Anglo-Saxon) and Continental (Romano-Germanic) law system. What are the most significant differences between family laws in these systems?

The scope of Anglo-Saxon family system does not deviate from the Continental one and regulates similar legal issues. As in other European countries, English-American family law system has evolved from the hierarchic relations between the spouses to the more equal one.

It should be mentioned that the American civil legal system is historically based on the English common law system. This legal system was basically developed by the judicial jurisdiction which played an important role due to the initial lack of the statutory law and domination of the custom. In general, the main difference between the common law system and statutory law one, is that under common law system judicial decision precede the written law, while under the statutory law system written law leads and play the key role as a source of the law.

When analyzing American family law, it is important to bear in mind that family law issues, including matrimonial property regimes can be regulated differently in each State. However, over the last few years there has been a notable push to harmonize a particular and important subset of family law.

Unlike in certain European Union countries, there are only two matrimonial property regimes in the United States, with each state having a default property distribution regime of either: equitable distribution, which necessitates a fair but not necessarily equal division between the spouses or community property, which often results in a roughly equal division of martial property between the spouses.

This variety of legal differences in family law among states can bring some problems regarding the law applicable to the concrete situation, for example when spouses are from different states or plan to get married in the different state. This characteristic being typical for the Americans shall not be known for most of the European citizens, where is one unique legal system in their country, of course only in situation where spouses are from the same country.

With development of European Union and introduction its main principle, which is freedom of movement, the family issues are becoming more and more transnational matter. However, harmonization of all family law systems may be difficult task, having regard to fact that there is sufficient diversity of the statutory matrimonial property regimes as well as significant difference between Continental and English approach towards financial consequences of marriage. For example, English law does not recognize any special martial property regime and marriage does not affect the property relations of spouses. In other words, the spouse’s property relations are treated in the same way as the property relations of those who are not married. England’s approach can be described as a total separation of property, if one would like to compare this approach to those countries wherein martial property regimes exist.  What is more, English law does not recognize martial agreements in the sense that is typical in other European countries. Although spouses may enter into agreements, there is not any particular regime that results between them.

  1. What should take in consideration a person from continental Europe signing a marriage contract with a citizen of USA?

It all depends on the law that the spouses have chosen as their law applicable to their marriage. They can conclude martial agreement in Europe under the particular European country law as well as under American law. If European decides to conclude such an agreement under the American law, he must remember about all the mentioned above differences between American and Continental approach towards martial agreements.

  1. Is a marriage contract, signed in one European country, valid in all other EU countries? USA? Are there countries in the world, where such contract won’t be valid? What countries?

Again, it all depends on the law that the spouses have chosen as their law applicable to their marriage. For example, if the American law has been chosen and the martial agreement was concluded under this law, there is no need to validate martial agreement under other law unless the spouses will not change their law applicable.

  1. Who mostly is offering to sign a marriage contract – a groom or a bride (according to your experience)?

I must admit that it is very difficult to say whether a groom or a bride is the one who offers the idea of concluding martial agreement more frequently, because it all depends on concrete situation and circumstances surrounding the relationship of future spouses. However, it seems that wealthy men, with bad experience in distribution of assets are more likely to conclude martial agreements, especially before marriage, in order to avoid damaging consequences of potential divorce. Surprisingly, it is often that spouses together come up with the idea of concluding martial agreement during the marriage when they decide to start a business activity. They simply want to separate their assets from the creditors of business activity that may potentially recover debts from the common property of spouses. On the other hand I can observe that women who were betrayed by their unfaithful husbands prefer to conclude martial agreement just before divorce and establish limited community of property even though there are not as wealthy as their husband. They want to immediately separate from their husband at every level of life.

  1. Can a marriage contract protect a person from creditors, who are asking money from the spouse? How should it be correctly specified in the marriage contract?

Martial agreements concluded in order to escape from creditors are recommended especially in those countries wherein the default statutory regime is limited to community of property. This statutory default of limited community of property is problematic, especially when either one or both of the spouses decide to start a commercial activity. The rules of management and liability for debts may make it difficult to be a married entrepreneur or even a shareholder, increasing the importance of having alternate system onto which spouses may contract by means of a martial agreement. However, there could be some “legal traps” that can detain efficiency of property regime transformation over creditors. For example, under the Polish law, the marital agreement has effects in relation to third parties if they are informed of the agreement and of the regime chosen by the spouses. Therefore the regime can affect creditors, who are protected by the above mentioned rule. If the spouses failed to inform third parties, however, the martial agreement does have any effect on these third parties. In practice, this kind of situation is very common.

  1. There are cases when spouses are from two different countries, but they are getting married in the third country. What difficulties can be expected in this situation? A year ago one couple – wife from Latvia and husband from India – were getting married in Turkish Cyprus. They chose Turkish side because the guests didn’t need visas. After that in Latvia they couldn’t receive their marriage documents, because Turkish Cyprus is not admitted by other countries. How a couple can protect themselves from such situations?

Getting married in the third country is a growing trend all over the world. Future spouses want get married in unique, uninhabited place, usually away from large, noisy family. However, it is recommended to choose such place carefully and consider not only logistic aspects, but mainly the legal ones. Turkish Cyprus shall be an excellent example of a place that from the legal perspective may be chosen irresponsibly. Under the international law, Turkish Cyprus is not recognised as a country, and as a consequence, entering into marriage under Turkish Cyprus law couldn’t be valid and recognized by other countries. Therefore, it is advised to check the legal framework of country that prospective spouses choose for their place to get married. Secondly, to make sure that marriage will be recognized in other country, for example, the one that future spouses are planning to live in, it recommended to check all the requirements that are specified not only in the country that a couple is getting married but also in the country that future spouses want to have their marriage be recognized. For example, the marriage of 16 years old girl may be legally acceptable in one country but forbidden in other one, so it can be taken as an invalid.

Before getting married in different country, it is also recommended to check all documents that will be necessary in order to successfully get married, like birth certificate translated into any of official language of this country or certificate of legal capacity to enter the marriage. Such information are usually available at embassies or Ministry of Foreign Affairs of the country.

  1. What about international marriages with citizens of ex-USSR countries (Russia, Kazakhstan, Uzbekistan etc)? If a citizen of EU has signed a marriage contract with citizen of Russia, would it be valid anywhere in the world? Where it won’t be valid?

From the legal perspective, there is practically no difference between getting married with the citizen of EU or citizen of any other country in the world. We have to bear in mind that family law is still regulated in each EU member state differently and so far, one unique EU family law does not exist. Probably, it will never exist, concerning all the significant differences between EU member states family legal systems which provide wide range of diversity among family law regulations. All the issues regarding validity and law applicable to the marriage are regulated by the particular law of each country, especially international private law which includes conflict-of-law rules.

As an example, pursuant to the art. 52 of the Polish International Private Law, as the law applicable to the matrimonial property regime, the spouses are free to choose the law of nationality of one of the spouses, or the law where one of the spouses is domiciled or has habitual residence. The choice may also be made before the marriage is concluded. The matrimonial property agreement is governed by the law chosen by the spouses in accordance with the regulation mentioned before. In the absence of a choice of law, the matrimonial property agreement is governed by the applicable to the spouses’ personal relationships and the matrimonial property regime, as of the day the agreement was concluded.

Each country has formally similar regulations, which indicate which law is applicable in concrete situation, however they can differ in some ways. The marital agreement concluded under certain law will be valid according to this particular law, which will be applicable to the whole marriage issues. Therefore, there is no need to validate marital agreement under other law unless the spouses will not change their law applicable.

  1. In what countries are there restrictions on getting married with a foreigner? (Muslim countries?) Is a marriage and marriage contract, signed for example in Las Vegas, valid anywhere else except Las Vegas?

Restrictions on getting married with a foreigner could be different depending on the legal and cultural aspects of certain country. The most visible example could be countries where the law of the Sharia will be obliging. As far I know, it is for example forbidden for woman to marry a person of different than islam religion. But looking at the Western countries legal systems it seems there are no limitations regarding marriage with the foreigner. Despite some cultural restrictions in some countries, getting married with a foreigner all over the world is acceptable.

Validity of entering into marriage in Las Vegas depends on fulfillment of certain legal criteria of the country wherein one wants to have its marriage to be legalized. Under Polish law, the marriage record should be translated into Polish by the sworn translator and then it could be legalized by the appropriate Polish Public Registry Office.

Analyzing the case of concluding martial agreement in Las Vegas, it should be noticed that it all depends on the law that the spouses have chosen as their law applicable to the marriage as well as the conflict-of-laws rules of the international private law of certain country. For example, if the future spouses choose American law as their law applicable, then the marital agreement concluded in Las Vegas will be valid. While considering situation when the spouses choose Polish law as the law applicable, marital agreement concluded in Las Vegas won’t be valid because not only the content of the agreement should be compatible with Polish Law, but also should be concluded in the form of notarial deed before the notary, which is required for marital agreement in order to be valid.

  1. How can a spouse change some points of the marriage contract, if some of them are outdated? And where is it possible to do it (for example, wife is a citizen of Poland, husband – citizen of USA, but family lives in Belgium?) Or marriage contract is signed in Belgium, but family lives in USA?

The change of the marital agreement or their particular provisions can be done any time because it is effective upon legal consequences at the moment of signing the agreement or its particular provisions. Nonetheless, it is important to ensure that form of the amendments to the contract or new agreement corresponds to the form stipulated by law, for example form of the notarial deed which is required in certain countries.

Considering the case of Polish wife and American husband who choose Belgium as a country of permanent place of residence, it should be noticed that the amendments to the marital agreements should be concluded under the law that was previously chosen by the spouses as law applicable to their marriage. For example, pursuant to Polish private international law, the spouses have a possibility to choose law of Belgium (as the country of residence of the spouses) as the one that regulates their property relations. In this situation, any amendment shall be concluded under the Belgium law. If they choose Polish law as the applicable one to their marriage but they will live in the United States or Belgium, the Polish law will be suitable for changing the marital agreement.

  1. How can a person protect himself/herself from “stealing a child” by the spouse with the help of marriage contract? (Fox example, a couple gets divorced and father, citizen of USA, takes a child away with him).

None of the model of marital property regime or marital agreement itself includes a possibility to protect one of the parent from abduction a child by the other one. Even if the American possible extent of marital agreement may appear as the one that offers the widest range of opportunities concerning possible scope of the martial regulations, it is still agreement concluded by the prospective spouses in order to regulate mainly property issues. The only legal tool which could by apply in the event of child’s abduction is the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction which seeks to curb international abductions of children by providing judicial remedies to those seeking the return of a child who has been wrongfully removed or retained.

  1. Can you please give some basic recommendations for those whose are planning to sign an international marriage contract. Can you, please, name some most common mistakes people make signing an international marriage contract?

First of all, the decision of concluding marital agreement between prospective spouses who come from different countries should be well thought-out and preceded by the analysis of the law of the country that is chosen as a law applicable for the marital property regime. Having made such a research, couple has to decide which of the martial property regime will be the most suitable for them, from both economical and practical reasons. For example, one of the spouse is German while other is Polish. The German default statutory regime is basically based on the separation of property with equalization of gains while Polish statutory regime is regulated on the opposite side, as the community of property. In this particular case couple has to consider whether they prefer community of property by choosing the Polish model or the German one, maybe because one of the future spouse runs business activity that generates a loss and it is simply better to separate spouses’ property from potential creditors.

It seems that the biggest mistake concerning international marital agreement is simply not concluding any. A marital contract really helps in the event of divorce and allows to avoid problems with determining the law applicable to the concrete situation. Before concluding marital agreement under the law chosen by the future spouses it is also advised to check the legal form of such an agreement in order to make it legally valid and binding. For example, under the Polish law, the form of notary deed is required for all of the martial agreements while in the other countries such an restriction could not exists at all.

To sum up, I often recommend to conclude marital agreements, especially for those of the prospective spouses that are originally from different countries.