Whether or not South Korea is the “divorce capital of Asia” is open to debate. But what seems pretty incontrovertible is that more and more Asian marriages are ending in divorce (like everywhere else in the world supposedly) and more and more Asian couples are entering into prenuptial agreements to protect themselves for this inevitable fall out.
But it’s not like these premarital agreements are ipso facto enforceable in every Asian jurisdiction. Some countries like Hong Kong and Singapore have a bit of a British thing going on and we know that the British are not totally bullish on prenuptial agreements. Prenups are pretty much not given the force of law in UK. That is why Baroness Deech recently got a pebble in her shoe, as a matter of fact, and went public with the idea that it’s high time that England started enforcing prenups as a matter of law. She’s basically lobbying for divorce reforms, particularly with respect to the issue of prenups. See our post on the Baroness here: http://www.divorcesaloon.com/united-kingdom-prenups-to-be-enforced-in-near-future-if-baroness-deech-has-her-way
Asian countries like Singapore and Hong Kong, as I said, may be having similar issues with these premarital contracts and their enforceability as their British trend-setters. But like the British, many are apparently pressing hard for reform.
Not every Asian country looks askance at the prenup, however. Countries like Japan and China are slightly more westernized on this issue and they are likely to give prenups more than just an evil eye from a judicial perspective. According to this article by Kevin Voigt dated 9 July 2004 in The Asian Wall Street Journal “A 2002 study by China Mainland Marketing Research of women in Beijing, Shanghai and Guangzhou showed nearly 60% favored a prenuptial agreement.”
Globalization may play a role in this swing towards making prenups de riguer in Asia. More and more Asians are globe-trotting and living in foreign jurisdictions. Because every country has its own divorce laws (in the US every state has differing laws on the issue) couples are finding that it just plain makes sense to have a premarital agreement in place – especially because some countries and jurisdications can be plainly more favorable than others for certain issues such as custody, equitable distribution and visitation rights. Japan, for example, has a maternal preference for custody and fathers (especially those who are not Japanese) often have a very tough time seeing the children after a divorce. Check out this post we did on an American father who was arrested for trying to “abduct” his kids in Japan after their Japanese mother took them to Japan and refused to return them: http://www.divorcesaloon.com/american-father-arrested-for-kidnapping-his-kids-in-japan. Just from a purely strategic perspective, couples who are marrying into a Japanese coupledom might want a prenup that stipulates in the event of a divorce, another country other than Japan would be the jurisdiction to hear the case; barring that, they may stipulate the specific parameters of visitation and custody. Even if the court frowns upon the prenup in such as case, at least the premarital intention of the parties would be known.
As International divorce and family law attorney Jeremy Morley told the Asian Wall Street Journal, “[A] prenup can most definitely give the court evidence of the (pre-marriage) intentions of both parties.”
Check out this article on the issue. It’s a bit dated but….http://www.international-divorce.com/setforlife-article.htm
By New York Divorce Attorney: www.mynewyorkdivorceattorney.com
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