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JPEsq., Lawyer
Category: Family Law
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My aunt was born and married in Mexico under Mexican law in

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My aunt was born and married in Mexico under Mexican law in 1977. They immigrated and she purchased separate property in 1988, an apramment building in California and are residents of California and lives of the income rents She has had enough of the marriage and wants to divorce from her husband My question concerns issues of community propery and how the transmuation of separate property in the context of California community property rules in that their marriage in Mexico has an interesting item on their marriage certificate.

Like in many Franco Hispano Civilian countries Mexico allows the parties to elect at the onset of marriage when the marriage certificate is issued whether to be married and have their property/assets brought into the marraige separatly maintianed and tranmuted at the outset and anything mainted soley in ones names is separate or one could elect be considered "community property". My aunt and her husband elected "separate" (separacion de bienes). My aunt's mariage certificate under no uncertain terms indicated that both parties opted for separate property free of community property claims at the outset of the marriage clearly indicated in Spanish on the Mexican Marriage Certifacte, thus it appears that my aunt's marraige is a bi-national marriage.

My underlying question is, can the marriage certificate be used as an mutally consented prenuptial agreement as they are legal residents of California and the divorce must be initiated in California given the community property issues for the CA Real Estate, although only maintained in my aunt's name. I have found Mexico's position on the matter from their Federal Civil Code, but would this fly in Califronia absent a properly issued in English prenuptial agreement? Or could the Mexican marraige certificate be registered in CA with County Clerk to give the Mexican Certificate effect?

Best, XXXXX XXXXX Santa Monica

I briefly researched the issue. I found no cases where a Mexican marriage certificate was used as a de facto pre-nuptial agreement. But as I was reading your question, before I got to your mention of the possibility of using it as a pre-nup, I thought, "I bet they could argue that the marriage election is a de-facto pre-nuptial agreement."


The marriage is valid in California, but the Mexican laws would not bind the divorce court... so the default position would be that the property is marital property. But she could overcome that presumption by either showing that the property was "separate property" under California's definition (brought into the marriage, inherited, etc.) or that the election on the marriage certificate should act as a pre-nuptial contract.


I think it would be a case of first impression (though I cannot promise I did not miss a case)... so she could argue anything she wants. It sounds like a solid argument to me.


She could also try to get him to sign a post-nuptial agreement now saying that he has no interest in the property. But if they are on bad terms, that could backfire.

Customer: replied 6 years ago.
Thank you! I can't find a clear case law, except for other common law jurisdictions and civil law jurisdiction. In england an wales where a German paper heiress married somone from England, but entered into a Prenup in Germany and married in Germany but resided in London and filed in the English Family Court seeking to enforce their terms, but it wasn't clear if it was that all in one tick on the marraige certificate or if it were a formal agreement under German Civil Law. Radmacher (formerly Granatino) v Granatino [2009] EWCA Civ 649; [2009] WLR (D) 227, but this had to do more with congruence of Franco Hipano Civil Law Countries and Common Law countires of Europe under EU law and their approach to prenups.

I fear you may be correct in you assesment would not bind the California Court, but the above case law, the Heiress got England to do it, but under different circumstances, and cases of first impression would want to make me take pause. I think I will have her run with that the election on the marriage certificate should act as a pre-nuptial contract.

One last question before I accept, if we were able to cajole her husband to sign a post nup, and they are on bad terms what is the potential back fire as we are trying to contain his viable claims?

I just meant that the mere mention of the post-nuptial agreement may set him into action, if he was otherwise unaware of her intentions. It may have never crossed his mind that he would have a claim on her property, but if she presents a post-nup to him, he may realize that he has a claim.
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Customer: replied 6 years ago.
Thank you sir! You are very smart, thank you for your help!

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