Prenuptial agreement
Encyclopedia
A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...

 entered into prior to marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...

, civil union
Civil union
A civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...

 or any other agreement prior to the main agreement by the people intending to marry or contract with each other. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property
Division of property
Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce...

 and spousal support
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...

 in the event of divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...

 or breakup of marriage. They may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery
Adultery
Adultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...

; further conditions of guardianship may be included as well.

In some countries, including the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...

, the prenuptial agreement not only provides for the event of a divorce, but also to protect some property during the marriage, for instance in case of a bankruptcy.

Many countries, including Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

, Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...

, and Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...

, have matrimonial regime
Matrimonial regime
Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate, and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the...

s, in addition to, or some cases, in lieu of prenuptial agreements.

Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married.

Legal recognition

Laws vary between both states and countries in both how to draft them and in whether they will enforce such agreements.

United Kingdom

Prenuptial agreements have historically not been considered legally valid in England. This is still generally the case, although a 2010 Supreme court test case between the German heiress Katrin Radmacher and Nicolas Granatino, indicated that such agreements can "in the right case" have decisive weight in a divorce settlement. The Law Commission is due to consider whether a change should be made to the letter of the law, recognizing prenupts in a more general way; they will report on the matter in 2012.

Continental Europe

Prenuptial agreements have long been recognized as valid in several European countries, such as France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

, Belgium
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...

, the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...

, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...

, Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....

, Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....

, Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...

, Norway
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...

 and Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...

. While in some of these countries there are limits on what restrictions the courts will see as enforceable or valid (e.g. Germany after 2001, where appeals courts have indicated this), a written and properly initiated contract, freely agreed upon, cannot be challenged by, for instance, invoking the circumstances under which the marriage broke down or the conduct of either part. In France and Belgium (as in Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....

, which has the same judicial tradition) prenuptial agreements must be set up in the presence of a notary.

In many of the countries mentioned, prenuptials may also protect the non-shared property and money from being pulled into a bankruptcy and can serve to support lawsuits and settlements during the marriage (for instance if one part has sold or wrongfully mortgaged a piece of property that had been set aside by his/her partner).

United States

Historically, judges in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 accepted the view that prenuptial agreements were corrupting what marriage was supposed to stand for, and often they would not recognize them. Currently they are recognized, although they may not always be enforced. Both parties should have lawyers represent them to ensure that the agreement is enforceable. In some cases, the parties retain a private judge to be present during the signing, to be sure that neither party has been coerced into the agreement. Some attorneys recommend videotaping the signing, although this is exceptional. Some states such as California require that the parties be represented by counsel if spousal support (alimony) is limited.

Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property disputes in times of divorce. They protect minimal assets and are not the final word. Nevertheless, they can be very powerful and limit parties' property rights and alimony. It may be impossible to set aside a properly drafted and executed prenup. A prenup can dictate not only what happens if the parties divorce, but also what happens when they die. They can act as a contract to make a will and/or eliminate all your rights to property, probate homestead, probate allowance, right to take as a predetermined heir, and the right to act as an executor and administrator of your spouse's estate.

A prenuptial agreement is only valid if it is completed prior to marriage. After a couple is married, they may draw up a post-nuptial agreement.

In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia. Likewise, in most jurisdictions, five elements are required for a valid prenuptial agreement:
  1. agreement must be in writing (oral prenups are generally unenforceable);
  2. must be executed voluntarily;
  3. full and/or fair disclosure at the time of execution;
  4. the agreement cannot be unconscionable;
  5. it must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgment
    Acknowledgment (law)
    In law, an acknowledgment is a declaration or avowal of one's own act, to give it legal validity, such as the acknowledgment of a deed before a proper officer...

    , before a notary public.


Prenuptial agreements in all U.S. states are not allowed to regulate issues relating to the children of the marriage, in particular, custody and access issues. The reason behind this is that matters involving children must be decided in the children's best interests. However, this is controversial: some people believe that as custody battles are the worst part of a divorce, couples should be able to settle this in advance.

With respect to financial issues ancillary to divorce, prenuptial agreements are routinely upheld and enforced by courts in virtually all states. There are circumstances in which courts have refused to enforce certain portions/provisions of such agreements. For example, in an April, 2007 decision by the Appellate Division in New Jersey, the court refused to enforce a provision of a prenuptial agreement relating to the wife's waiver of her interest in the husband's savings plan. The New Jersey court held that when the parties executed their prenuptial agreement, it was not foreseeable that the husband would later increase his contributions toward the savings plan.

In California, one case (Hall v. Hall, 222 Cal. App. 3d 578 (1990)) enforced an oral prenuptial agreement in the probate of the estate of one of the parties because the surviving spouse had substantially changed her position in reliance on the oral agreement. Parties can waive disclosure beyond that which is provided, and there is no requirement of notarization, but it is good practice. There are special requirements if parties sign the agreement without attorney, and the parties must have independent counsel if they limit spousal support (also known as alimony or spousal maintenance in other states). Parties must wait seven days after the premarital agreement is first presented for review before they sign it, but there is no requirement that this be done a certain number of days prior to the marriage. Prenups often take months to negotiate so they should not be left until the last minute (as people often do). If the prenup calls for the payment of a lump sum at the time of divorce, it may be deemed to promote divorce. This concept has come under attack recently and a lawyer should be consulted to make sure the prenup does not violate this provision.

In California, an agreement is very powerful. A couple can waive their rights to share property (community property). It can limit spousal support (although a court at the divorce can set this aside if it deems that the limitation is unconscionable). The agreement can act as a contract to make a will requiring one spouse to provide for the other at death. It can also limit probate rights at death, such as the right to a probate allowance, the right to act an executor, the right to take as a predetermined heir, and so forth.

In California, Registered Domestic Partners may also enter into a prenup. Prenups for Domestic Partners can have added complexities because the federal tax treatment of Domestic Partners differs from that of married couples.

In California, courts have not allowed penalties in prenups that sanction people for infidelity or using recreational drugs. Court will not enforce requirements that one person will do the dishes or that the children will be raised in a certain religion.

Postmarital agreements are treated very differently in California law. Spouses have a fiduciary duty to one another so premarital agreements come under a special category of agreements. There is a presumption that the postmarital agreement was obtained by undue influence if one party gains an advantage. Disclosure cannot be waived in the context of a postmarital agreement.

Of note, unlike all other contract law, consideration
Consideration
Consideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise. It can take a number of forms: money, property, a promise, the doing of an act, or even refraining from...

 is not required, although a minority of courts point to the marriage itself as the consideration. Through a prenup, a spouse can completely waive rights to property, alimony or inheritance as well as the elective share and get nothing in return.

A sunset provision
Sunset provision
In public policy, a sunset provision or clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law...

 may be inserted into a prenuptial agreement, specifying that after a certain amount of time, the agreement will expire. In a few states, such as Maine, the agreement will automatically lapse after the birth of a child, unless the parties renew the agreement. In other states, a certain number of years of marriage will cause a prenuptial agreement to lapse. In states that have adopted the UPAA (Uniform Premarital Agreement Act
Uniform Premarital Agreement Act
The Uniform Premarital Agreement Act is a Uniform Act governing prenuptial agreements. It was drafted by the National Conference of Commissioners on Uniform State Laws in 1983....

), no sunset provision is provided by statute, but one could be privately contracted for. Note that states have different versions of the UPAA.

Choice of law
Choice of law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...

 provisions are critical in prenups. Parties to the agreement can elect to have the law of the state they are married in govern both the interpretation of the agreement and how property is divided at the time of divorce. In the absence of a choice of law clause it is the law of the place the parties divorce, not the law of the state they were married that decides property and support issues.

In drafting an agreement, it is important to recognize that there are two types of state laws that govern divorce equitable distribution, of which there are 41 states and 9 states that are some variation of community property
Community property
Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions...

. An agreement written in a community property state may not be designed to govern what occurs in an equitable distribution state and vice versa. It may be necessary to retain attorneys in both states to cover the possible eventuality that the parties may live in a state other than the state they were married. Often people have more than one home in different states or they move a lot because of their work so it is important to take that into account in the drafting process.

There are several ways that a prenuptial agreement can be attacked in court. These include lack of voluntariness, unconscionability, and a failure to disclose assets.

Australia

Prenuptial agreements are recognised in Australia by the Family Law Act 1975 (Commonwealth). oo

South Africa

In South Africa, a civil marriage is, by default, a marriage in community of property. To marry out of community of property, the spouses must notarize an ante-nuptial contract.

Premarital mediation

Premarital mediation is an alternative way of creating a prenuptial agreement. In this process, a mediator facilitates an open discussion between the couple about all kinds of marital issues, like expectations about working after children are born and saving and spending styles as well as the traditional premarital discussions about property division and spousal support if the marriage is terminated. The engaged couple makes all of the decisions about what would happen in the event of a separation or divorce with the assistance of the mediator. They then draft either a deal memo or a premarital agreement and have it reviewed by their respective attorneys. An agreement developed via mediation is typically less expensive because fewer hours are spent with attorneys because the couple has made all of the decisions together, rather than one side vs. the other.

Catholicism

Prenuptial agreements are a matter of civil law, so Catholic canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...

 does not rule them out in principle (for example, to determine how property would be divided among the children of a prior marriage upon the death of one spouse).

In practice, prenuptials may run afoul of Church law in a number of ways. For example, they cannot subject a marriage to a condition concerning the future (such as an agreement about the dividing of assets in case of divorce). The Code of Canon Law provides: "A marriage subject to a condition about the future cannot be contracted validly." (CIC 1102)

The Canon Law: Letter and Spirit, a commentary on canon law, explains that condition may be defined as "a stipulation by which an agreement is made contingent upon the verification or fulfillment of some circumstance or event that is not yet certain." It goes on to state that "any condition concerning the future attached to matrimonial consent renders marriage invalid." For example, a marriage would be invalid if the parties stipulated that they must have children or they have the right to divorce and remarry someone else. http://www.catholic.com/thisrock/2005/0505qq.asp
Catahar

Judaism

In Judaism, the ketubah
Ketubah
A ketubah is a special type of Jewish prenuptial agreement. It is considered an integral part of a traditional Jewish marriage, and outlines the rights and responsibilities of the groom, in relation to the bride.-History:...

, a prenuptial contract, has long been established as an integral part of the Jewish marriage, and is signed and read aloud at the marriage ceremony. It contains the husband's requirement to support his wife by providing her with food, clothing and marital relations, as well as providing for the wife's support in the case of divorce or the husband's death. However, under this passage, a woman is free to leave if her husband doesn't provide for her.

In 2004, the High Court of South Africa
High Court of South Africa
The High Courts are superior courts of law in South Africa. The courts were created in 1996 on the adoption of the Constitution of South Africa, and inherited the jurisdiction of the provincial and local divisions of the former Supreme Court of South Africa...

 upheld a cherem
Cherem
Cherem , is the highest ecclesiastical censure in the Jewish community. It is the total exclusion of a person from the Jewish community. It is a form of shunning, and is similar to excommunication in the Catholic Church...

 against a Johannesburg
Johannesburg
Johannesburg also known as Jozi, Jo'burg or Egoli, is the largest city in South Africa, by population. Johannesburg is the provincial capital of Gauteng, the wealthiest province in South Africa, having the largest economy of any metropolitan region in Sub-Saharan Africa...

 businessman because he refused to pay his former wife alimony
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...

 as ordered by a beth din
Beth din
A beth din, bet din, beit din or beis din is a rabbinical court of Judaism. In ancient times, it was the building block of the legal system in the Biblical Land of Israel...

.

Recently, a movement supporting an additional prenuptial agreement has emerged in some Modern Orthodox
Modern Orthodox Judaism
Modern Orthodox Judaism is a movement within Orthodox Judaism that attempts to synthesize Jewish values and the observance of Jewish law, with the secular, modern world....

 circles. This is in response to a growing number of cases in which the husband refuses to grant a religious divorce. In such matters, the local authorities are unable to intervene, both out of concerns regarding separation of church and state
Separation of church and state
The concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....

 and certain halakhic problems that would arise. This situation leaves the wife in a state of aginut
Agunah
Agunah ; literally 'anchored or chained') is a halachic term for a Jewish woman who is "chained" to her marriage. The classic case of this, is a man who has left on a journey, and has not returned, or has gone into battle and is MIA...

, in which she is unable to remarry. To remedy this situation, the movement promotes a prenuptial agreement in which the couple agrees to conduct their divorce, should it occur, in a rabbinical court
Beth din
A beth din, bet din, beit din or beis din is a rabbinical court of Judaism. In ancient times, it was the building block of the legal system in the Biblical Land of Israel...

.

Islam

In Islam, the prenuptial contract (Arabic Katb el-Kitab, Urdu Nikah-Nama), has long been established as an integral part of the Islamic marriage, and is signed and read aloud at the marriage ceremony. It outlines the rights and responsibilities of the groom and bride or other parties involved in marriage proceedings. It has to be a public declaration and can not be secretive.
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