Can a couple decide, before they even marry, which country’s courts will handle their divorce? For international couples with ties to Spain and other jurisdictions, this is one of the first questions we hear when drafting a prenuptial agreement. Spanish case law increasingly confirms that prenuptial agreements are binding contracts, but EU law draws a firm line around what spouses may actually pre-agree. Divorce itself cannot be assigned to a chosen court in advance: jurisdiction follows a fixed set of connecting factors. Matrimonial property and maintenance are different — in several scenarios spouses can validly agree in advance which courts will resolve those disputes, and a well-drafted prenuptial agreement can spare a couple years of parallel litigation across two or three countries. This article maps out where choice of forum is genuinely available in a prenuptial agreement under EU rules — for divorce, parental responsibility, matrimonial property and maintenance — and where it is not.

Prenuptial agreements are a common tool in Anglo-American legal systems, allowing couples to agree, before marrying, on the financial and legal consequences of a future divorce. In Spain their use has grown over the last decade, supported by Supreme Court case law confirming that agreements between spouses on the financial consequences of a divorce are valid and can only be annulled on the same grounds as any other contract.

One provision frequently included in these agreements is the choice of forum clause, through which the parties predetermine which country’s courts will hear disputes such as divorce or the division of matrimonial property. This is particularly useful for couples with connections to several jurisdictions, where more than one country could otherwise claim jurisdiction upon separation. For legal certainty, it is generally preferable that all divorce-related matters be resolved in a single jurisdiction.

• Choice of Forum for Divorce itself

Within the EU, a prenuptial agreement cannot validly choose the court that will declare the divorce itself. Brussels II ter — the regulation governing international jurisdiction in divorce and parental responsibility across the EU, except Denmark — sets out an exhaustive list of connecting factors instead: the spouses’ habitual residence, their last common habitual residence if one still lives there, the respondent’s habitual residence, the applicant’s habitual residence (subject to a minimum period of residence), or their common nationality.

Choice of forum by the parties is not among these options, and tacit submission is not possible either. The only indirect route to some control over the forum is a joint divorce application, where the couple agrees where to file, choosing among the habitual residences available to either spouse. The EU considered adding a genuine choice-of-forum option during the latest reform of Brussels II ter, but the proposal was ultimately dropped, and Spain’s Ley Orgánica del Poder Judicial follows the same restrictive approach, allowing choice of forum only where a rule expressly permits it.

In our view, reform is overdue. Allowing spouses to agree — with appropriate safeguards — on an exclusive forum for divorce would let all related disputes be resolved by a single court, avoiding the rush to file first that the current combination of multiple available forums and the EU’s lis pendens rules can encourage.

• Choice of Forum in Parental Responsibility Matters

Jurisdiction over parental responsibility generally follows the child’s habitual residence. As an exception, Brussels II ter allows parents to agree that the court already hearing the divorce should also decide parental responsibility issues — a form of prorogation of jurisdiction (prorrogatio fori) that keeps both matters before the same judge —, provided:

1. The choice of forum is accepted expressly, in writing, by both parents, before or during the proceedings.
2. It serves the child’s best interests.
3. The child has a substantive connection with the chosen jurisdiction — as the habitual residence of one parent, the child’s own former habitual residence, or the child’s nationality.

A similar rule applies outside the EU: the 1996 Hague Convention on Parental Responsibility and Measures for the Protection of Children allows prorogation of jurisdiction for children habitually resident in signatory states, provided at least one holder of parental responsibility is habitually resident there.

• Choice of Forum for Maintenance and Alimony

Maintenance and alimony claims between spouses are governed across the EU by Brussels III (Regulation 4/2009), under which jurisdiction normally lies with the courts of the defendant’s or the creditor’s habitual residence.

Spouses may instead agree in advance on the exclusive forum for these claims (maintenance to minors is excluded from this possibility), provided the chosen court has one of the following connections to the couple, assessed either when the agreement is signed or when the claim is filed:

1. The habitual residence of either spouse.
2. The nationality of either spouse.
3. The court already handling the couple’s other matrimonial matters.
4. The Member State of the spouses’ last common habitual residence, if maintained for at least one year.

A valid choice of forum for maintenance between the spouses discourages both forum shopping and parallel proceedings: even if the divorce forum itself cannot be chosen, fixing the forum for alimony makes filing elsewhere for divorce less attractive; choice of forum for maintenance between spouses indirectly fixes the only likely forum for divorce.

• Choice of Forum in Matrimonial Property Regime Matters

The matrimonial property regime governs how spouses own, manage and divide property during marriage and upon divorce or death. The forums for matrimonial property regime disputes are included in EU Regulation 2016/1103.

In general, the jurisdiction to rule on matters of matrimonial property regime will lie with the courts of the country that has been seized to rule on the divorce or separation with two limited exceptions, that give the parties more control.

1. The first applies when the divorce court’s jurisdiction is based solely on the applicant’s habitual residence: in that scenario, both spouses must expressly consent, in writing, before that same court can also rule on the matrimonial property regime. That consent, however, is given once divorce proceedings are already underway, rather than fixed years in advance — so it functions as a procedural safeguard at the time of the dispute.
2. The second broader exception applies to property disputes raised outside divorce proceedings. Here spouses can validly agree — expressly and in writing — to grant exclusive jurisdiction to the courts of the country whose law governs their property regime, or to the courts of the country where they married. Because this agreement does not depend on where the divorce is eventually filed, it is the o forum clause for matrimonial property that can be meaningfully fixed in a prenuptial agreement.

So, can a prenuptial agreement include a choice of forum clause? It depends on the matter. Spouses cannot choose the court that will declare the divorce itself, and their room to manoeuvre in parental responsibility is conditional on the child’s best interests.

EU law does allow the parties to fix the competent court in advance  — and a prenuptial agreement is the natural place to do so —, only for matters of maintenance between the spouses and issues of matrimonial property regime not connected with divorce proceedings. 

A clause that oversteps what EU law allows will simply be unenforceable, while a well-scoped one can spare a couple of years of parallel litigation across borders. At KINSHIP, we help international couples draft prenuptial agreements that make full use of all the legal options genuinely available to them.

By Andrea Fernández, Associate; and Álvaro Checa, co-founding Partner at KINSHIP.