Choice of law in international pre-marital agreements. A comparison between the US and the European system (Part II)

In the field of family law, there has been a trend, both in the USA and the EU, to increase party autonomy both in its dimension in substantive law and in conflicts of laws. One clear example of this trend towards more party autonomy in family law is the increasing use of prenuptial agreements in contemplation of a future divorce and their acceptance by national laws. While the USA has a long tradition in their enforcement, within the European Union there has been a recent opening to those agreements allowing the prospective spouses to draw up a contract upon the economic consequences of a marriage breakdown even before that marriage has taken place. International prenuptial agreements (agreements with significant contacts with numerous countries) raise relevant questions with regard to jurisdiction, applicable law, and recognition and enforcement. This study proposes to allow the parties to choose both the jurisdiction and the law applicable to a prenuptial agreement as a way of promoting the principles of unity, certainty and legal security. Nevertheless, family law must incorporate other values and elements and therefore several restrictions to that freedom should be considered.