Foreign Prenuptial Agreements and Property Division in Russia

Spouses often enter into prenuptial agreements abroad, particularly when they have different nationalities, live in different countries, or own real estate and other assets internationally. When a marriage ends, an important question may arise: will a foreign prenuptial agreement be recognised in Russia, and can it govern the division of property located in Russia?

A prenuptial agreement concluded abroad may be taken into account by Russian courts when dividing marital property. However, its legal effect depends on the applicable law, compliance with formal requirements, and the terms of the agreement. The fact that property is located in Russia does not necessarily mean that Russian law governs the spouses' matrimonial property relations.

The principal rules governing the law applicable to spouses' property relations are set out in Article 161 of the Russian Family Code. As a general rule, these relations are governed by the law of the country where the spouses have their common place of residence. If they no longer share a place of residence, the law of their last common place of residence applies. Where the spouses have never had a common place of residence, their property rights and obligations in Russia are governed by Russian law.

Under Article 161(2) of the Russian Family Code, spouses who do not share the same nationality or a common place of residence may choose the law governing their rights and obligations under a prenuptial agreement. If no applicable law has been chosen, the general rules of Article 161(1) apply.

Accordingly, when assessing a foreign prenuptial agreement, it is necessary to establish where the spouses lived together, whether they selected a governing law, and which legal requirements apply to the agreement. The mere fact that a prenuptial agreement was concluded outside Russia does not make it invalid.

An illustrative example is the Russian Supreme Court's ruling of 21 January 2014, No. 78-KG13-35. The spouses had entered into a prenuptial agreement in Finland establishing a separate property regime. During the marriage, the wife purchased a plot of land in Russia, registered in her name. Following the husband's death, his daughter sought to have part of the land included in the deceased's estate, arguing that property acquired during the marriage should be treated as jointly owned marital property.

The dispute raised the question of whether the Finnish prenuptial agreement applied to real estate located in Russia. A lower court considered that Russian law governing property rights and the formal requirements for transactions involving real estate should apply.

The Russian Supreme Court disagreed. It established that the spouses had shared their place of residence in Finland and that, under Article 161 of the Russian Family Code, their matrimonial property relations were therefore governed by Finnish family law. Under the prenuptial agreement and the applicable Finnish law, the land was the wife's separate property and did not form part of her late husband's estate.

The Supreme Court emphasised that the dispute arose from family law relations. It was therefore incorrect to apply general conflict-of-law rules governing rights in rem and real estate transactions instead of the specific rules applicable to matrimonial property relations.

The practical significance of this ruling is that the location of real estate in Russia does not, in itself, prevent the application of foreign family law when determining the spouses' property regime. Importantly, in this particular case, the separate property regime followed not only from the prenuptial agreement but also from Finnish law.

This issue was considered by the Russian Supreme Court in its ruling of 9 March 2021, No. 5-KG20-144-K2, concerning the Clément spouses. Before their marriage, a Russian citizen and a French citizen entered into a prenuptial agreement in France establishing a separate property regime. The spouses also chose French law to govern their property relations under the agreement. Following their divorce, the wife brought proceedings before a Russian court seeking to invalidate the agreement and divide property acquired during the marriage, which she claimed was worth more than RUB 2 billion.

The wife argued that the agreement placed her in an extremely disadvantageous position compared with her husband. However, the Supreme Court noted that the agreement had been executed in accordance with French law, signed in the presence of a notary, and entered into voluntarily by both spouses, who had freely agreed to establish a separate property regime.

The Court also found that the agreement did not conflict with Russian family law and had not been declared invalid. Furthermore, the wife had failed to provide sufficient evidence that she had been placed in an extremely disadvantageous position. The Court established that she also owned real estate acquired during the marriage. As a result, the Supreme Court upheld the appellate judgment dismissing the claims for invalidation of the prenuptial agreement and division of property.

This ruling demonstrates that a foreign prenuptial agreement may prevent the application of the general principle of equal division of marital property. A substantial difference in the value of assets owned by the respective spouses does not automatically render an agreement invalid. Challenging such an agreement requires establishing the applicable grounds for invalidity and presenting supporting evidence.

In addition to regulating their property rights, spouses sometimes include a clause specifying which country's courts will hear future disputes. Such a clause must be distinguished from a choice-of-law provision: the former concerns jurisdiction, while the latter determines the law under which the dispute will be resolved.

An example is the ruling of the Lazarevsky District Court of Sochi dated 27 May 2025, case No. 2-474/2025. The spouses married in Cyprus, lived in Israel, and acquired real estate in Russia during their marriage, including a plot of land and several buildings in Sochi. The wife subsequently brought proceedings before a Russian court seeking division of the marital property.

The husband relied on a prenuptial agreement concluded in Israel, which provided that disputes between the spouses would be heard by the competent Israeli court. The wife argued that the agreement had not entered into force because it had not been approved by an Israeli family court.

The Lazarevsky District Court noted that the agreement had been signed by both spouses, certified by an Israeli lawyer-notary, and had not been challenged. Giving effect to the clause providing for litigation in Israel, the Court left the Russian claim without consideration.

However, this conclusion must be assessed in light of Russian procedural law. Article 404 of the Russian Civil Procedure Code permits agreements modifying international jurisdiction within statutory limits. The parties cannot, however, override the exclusive jurisdiction of Russian courts by agreement. The wording of the jurisdiction clause, the nature of the claims, and the grounds on which a Russian court may exercise jurisdiction are therefore important.

It should also be noted that a claim for division of marital property is not necessarily equivalent to a dispute concerning rights in real estate. The Russian Supreme Court has repeatedly explained that claims for division of marital property may concern a change in the spouses' joint ownership regime rather than the resolution of an independent dispute over rights in rem. Consequently, the location of real estate is not always decisive when determining jurisdiction.

The Israeli case illustrates the practical importance of a foreign jurisdiction clause. However, the district court's ruling should not be interpreted as meaning that every such clause automatically excludes the jurisdiction of Russian courts.

The absence of an express choice-of-law provision does not automatically mean that Russian law applies. In such circumstances, the applicable law must be determined under the relevant conflict-of-law rules, primarily Article 161 of the Russian Family Code, taking account of any applicable international treaties.

For example, if the spouses shared their place of residence abroad, their matrimonial property relations may be governed by the law of that country, even where the dispute is heard by a Russian court. Foreign law may establish rules concerning marital property, the conclusion of prenuptial agreements, and their legal effects that differ from those under Russian law.

Accordingly, international matrimonial property disputes require separate consideration of both the terms of the prenuptial agreement and the law governing the spouses' property relations.

When a dispute arises, it is essential to establish which law governs the agreement and the spouses' property relations, whether the requirements for its execution and form have been satisfied, which assets fall within the scope of the agreement, and whether there are grounds for challenging its validity. If the agreement provides for disputes to be heard by a foreign court, the validity and permissible scope of the jurisdiction clause must also be examined.

Another important issue is the recognition and enforcement of the resulting judgment. Even if a foreign court resolves the dispute in accordance with the prenuptial agreement, recognition and enforcement of that judgment in Russia may require separate proceedings. This is particularly relevant where the judgment affects registered ownership rights to Russian real estate.

A foreign prenuptial agreement may be legally effective and determine the matrimonial property regime applicable in Russia. However, its effect depends not so much on the country where it was concluded as on the applicable law, the terms of the agreement, and the circumstances of the dispute.

Where a prenuptial agreement was concluded abroad and the spouses own property in Russia or several other countries, a preliminary legal assessment can help determine the applicable law, evaluate the agreement's legal effect, and identify an appropriate strategy for resolving the property dispute.