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Family Business Succession Planning and Family Matters Series-Key Issues of Matrimonial Property Regimes in Transnational Marriages
I. Introduction
Transnational marriages are not uncommon in today’s globalized world; so are transnational divorces. However, requirements for the formation of a marriage, recognition of prenuptial agreement, and regulations on matrimonial property regime vary from country to country, affecting property distribution in case the marriage relationship is dissolved.
For instance, if a Taiwanese citizen and an American citizen get married in the US pursuant to US law but have not registered their marriage in Taiwan, is their marital relationship valid in Taiwan? If they have a prenuptial agreement in the US but have not registered any matrimonial property regime in Taiwan, does Taiwan law recognize their prenuptial agreement? On the contrary, if the couple has registered the separation of property regime in Taiwan but has not made any prenuptial agreement in the US, does US law recognize the separation of property regime agreed by the couple pursuant to Taiwan law? These questions involve not only regulations regarding marriage, prenuptial agreement, and matrimonial property regime stipulated in the Taiwan law and in the US law, but also the regulations governing the choice of law in civil matters involving foreign elements in the Taiwan and in the US law. Various problems have incurred, while in the judicial practices the relevant rules are yet to be formulated. This article aims to introduce the basic and important issues of matrimonial property regimes in transnational marriages which may be used as references for transnational marriage and matrimonial property cases.
II. Key Issues of Transnational Marriages
(I) Formation and Validity of Marriage
In a transnational marriage, one of the spouses is a foreign national and may have a domicile overseas, and so Taiwan’s Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (hereinafter referred to the “Choice of Law Act”) needs to be taken into consideration.
Articles 46 and 47 of the Choice of Law Act provide the following:
"The formation of a marriage is governed by the national law of each party. However, a marriage is also effective if it satisfies the formal requisites prescribed either by the national law of one of the parties or by the law of the place of ceremony."
"The legal effect of a marriage relationship is governed by the national law common to the spouses; in the absence of a common national law, by the law of the domicile common to them; in the absence of a common law of domicile, by the law of the place most closely connected with the marriage relationship."
Note that, when a spouse has dual nationality, one should refer to Article 2 of the Choice of Law Act for the applicable “national law”: “Where the applicable law in accordance with this Act is the national law of a party, but such party has multiple nationalities, the national law is the law of the nationality most closely connected with the party.” For example, if a Taiwanese having US citizenship is domiciled in Taiwan, the nationality most closely connected with this person is Taiwan, so the national law applicable should be Taiwan law.
If this person with dual nationality and a US citizen get married in the US according to local law, then the formation of such marriage, in accordance with Article 46 of the Choice of Law Act, is considered valid, as it is pursuant to the national law of one of the parties (US law) or the law of the place of ceremony (US law). Nevertheless, it is recommended that those in Taiwan who find themselves in such circumstances also register their marriage pursuant to the Taiwan law. By this way, the formation of the marriage will be valid in accordance with Taiwan law, and does not necessitate the application of the Choice of Law Act, thereby simplifying the application process of the relevant laws.
The above explains the formation of transnational marriage. However, does the US law govern the said marriage? Regarding the legal effect of marriage relationship, one shall refer to Article 47 of the Choice of Law Act. In the example above, it appears that both parties have a common national law, namely the US law. However, according to Article 2 of the Choice of Law Act, the national law applicable to the spouse with dual nationality is the Taiwan law; therefore, the said couple does not have a common national law. Technically, as explained above, the national law of the person with dual nationality is the Taiwan law, whereas the national law of the other spouse (the US citizen) is the US law. Thus, the applicable law should instead be the law of the place of the common domicile. Therefore, if the US citizen also has a domicile in Taiwan, then it should be the Taiwan law that govern the legal effect of the couple’s marriage.
(II) The Prenuptial Agreement
A prenuptial agreement by nature is a contractual relationship for obligations. Taiwan law in principle recognizes a couple’s prenuptial agreement, provided that such agreement is not in violation of the public order and good morals (boni mores) of Taiwan (see Article 8 of the Choice of Law Act).
In Taiwan’s judicial practice, the particulars that may be agreed upon in a prenuptial agreement include: surname of the couple, domicile, matrimonial property regime, division of household chores, money at the disposal of each spouse, and surname of the offsprings, among others. If a spouse does not wish for his/her property acquired after marriage to be subject to his/her spouse’s claim for distribution of the remainder of property, it is recommended that the separation of property regime be adopted in the prenuptial agreement made in Taiwan and that the registration process be completed pursuant to the procedure prescribed by the relevant laws. It is also recommended that the separation of property regime or its equivalent be adopted in the couple’s prenuptial agreement made overseas for the overseas asset.
As the dissolution of the marriage relationship is a prerequisite for the alimony payment, it was once decided by the Taiwan court that the agreement on the alimony payment amounts to “an advance creation of divorce conditions” and accordingly the Taiwan court voided the effect of the provision regarding alimony payment stipulated in the prenuptial agreement. Furthermore, Article 1057 of the Civil Code of Taiwan provides rules regarding alimony, but with very strict requirements, according to which the alimony payment can only be made in circumstances where a divorce is rendered by judicial decree to the party without fault and encountered difficulties in livelihood. In consideration of the above, if a spouse believes that he/she is more likely to be the party making the alimony payment, it is advisable that he/she considers the foregoing provisions in in the Civil Code and set forth terms for the alimony payment in the prenuptial agreement. There are two reasons for this arrangement. First, as it is the provisions in the Civil Code that is referenced, and so the Taiwan court is less likely to invalidate the agreement. Second, the provision specifically provides that the party requesting alimony has to be the “party without fault and encountered difficulties in livelihood,” which requirement is reasonable and not unreasonably disadvantageous to the party paying the alimony.
If the agreement on the alimony payment are deemed to be in violation of Taiwan’s public order and good morals, then this part of the agreement may be voided by the Taiwan court. Nevertheless, the other provisions in the prenuptial agreement will remain valid.
(III) Agreement on matrimonial property regime
Article 48 of the Choice of Law Act provides the following:
"(Paragraph 1) Where the spouses have agreed in writing that either the national law or the law of domicile of one of them shall apply to their matrimonial property regime, the law agreed-upon governs; (Paragraph 2) Where there is no agreement or where their agreement is void under the applicable law of the preceding paragraph, the matrimonial property regime of the spouses is governed by the national law common to them; in the absence of a common national law, by the law of domicile common to them; in the absence of a common law of domicile, by the law of the place most closely connected with their marriage relationship; and (Paragraph 3) With respect to the immovable property of the spouses, if the property is subject to special provisions under the law of the place where it is located, the preceding two paragraphs do not apply."
In a transnational marriage, the spouse who is not a Taiwan citizen may still be subject to Taiwan law (as the governing law), pursuant to the Choice of Law Act. One should take particular note of the following:
First, the agreement of matrimonial property regime in Taiwan must be registered in the Court. That is, merely stating the matrimonial property regime in a prenuptial agreement is not sufficient. If a spouse wishes to prevent property under his/her name from being claimed for distribution by his/her spouse, the following measures should be taken:
1. Register the marriage relationship according to the procedure prescribed under Taiwan law in Taiwan.
2. Adopt the separation of property regime as the matrimonial regime in Taiwan, and complete the procedures for registration and publication (which could be searched online) of adoption of separation of property regime in the Taiwan court and obtain the official document from the court.
3. The registration of separation of property regime in Taiwan means that the worldwide properties under the names of each couple are to be separately disposed. Therefore, if any such property is located overseas, whether or not the laws of the overseas country recognizes Taiwan’s separation of property regime would be of paramount importance. Once the couple adopts the separation of property regime in Taiwan, the agreement and the court document received should be translated and sent to a foreign counsel for his/her legal opinion. This is to make sure that the registration of separation of property regime in Taiwan is recognized overseas. If a spouse has substantial properties, he/she should also agree on or register the separation of property regime or make a similar agreement pursuant to the local law of that foreign country, which will give effect to the separation of property regime in accordance with local law of that foreign country (rather than relying on the recognition of Taiwan law by that foreign country for the regime to take effect indirectly). This step will ensure a more comprehensive protection of the property under each spouse’s name.
III. Conclusion
In conclusion, the prenuptial agreement and the matrimonial property regime both help to eliminate the disputes and to save costs in litigation --- especially for transnational marriage, as the costs of litigation for such marriage would be higher than those for non-transnational marriage in terms of effort, time and monetary expense. For the newlywed couple to make prudent plans in the prenuptial agreement and matrimonial property regime, careful thoughts and the consensus of both parties are the key to success.