A
prenuptial agreement,
antenuptial agreement, or
premarital agreement, commonly abbreviated to
prenup or
prenupt, is a
contractIn law, a contract is a binding legal agreement that is enforceable in a court of law. That is to say, a contract is an exchange of promises for the breach of which the law will provide a remedy....
entered into prior to
marriageMarriage is a social union or legal contract between individuals that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged by a variety of ways, depending on the culture or demographic...
or
civil unionA civil union is a legally recognized union 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 with rights, benefits, and responsibilities similar to opposite-sex...
by the people intending to marry. The content of a prenuptial agreement can vary widely, but commonly includes provisions for
division of propertyDivision of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce...
and
spousal supportAlimony, maintenance or spousal support is an obligation established by divorce law in many countries that is based on the premise that both spouses have an absolute obligation to support each other during the marriage unless they are legally separated...
in the event of
divorceDivorce or dissolution of marriage is the final termination of a marriage, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between two persons...
or breakup of marriage.
In some countries, including the
NetherlandsThe Netherlands is a country in Northwestern Europe, constituting the major portion of the Kingdom of the Netherlands. It is a parliamentary democratic constitutional monarchy. The Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east...
, 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
CanadaCanada is a country occupying most of northern North America, extending from the Atlantic Ocean in the east to the Pacific Ocean in the west and northward into the Arctic Ocean...
,
FranceFrance , officially the French Republic , is a country located in Western Europe, with several overseas islands and territories located on other continents. Metropolitan France extends from the Mediterranean Sea to the English Channel and the North Sea, and from the Rhine to the Atlantic Ocean...
,
ItalyItaly , officially the Italian Republic , is a country located on the Italian Peninsula in Southern Europe and on the two largest islands in the Mediterranean Sea, Sicily and Sardinia. Italy shares its northern, Alpine boundary with France, Switzerland, Austria and Slovenia...
, and
GermanyGermany , officially the Federal Republic of Germany , is a country in Central Europe. It is bordered to the north by the North Sea, Denmark, and the Baltic Sea; to the east by Poland and the Czech Republic; to the south by Austria and Switzerland; and to the west by France, Luxembourg, Belgium,...
, have
matrimonial regimeMatrimonial regimes are the property ownership regimes that are set forth in the law to which couples may prescribe under civil law marriage law...
s, in addition to, or some cases, in lieu of prenuptial agreements.
As of 2007,
EnglandEngland is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west and the North Sea to the east, with the English Channel to the south separating it from continental...
and
WalesWales is a country that is part of the United Kingdom, bordered by England to its east, and the Atlantic Ocean and Irish Sea to its west. It is also an elective region of the European Union...
do not enforce prenuptial agreements, but agreements may be upheld at the judge's discretion.
A
prenuptial agreement,
antenuptial agreement, or
premarital agreement, commonly abbreviated to
prenup or
prenupt, is a
contractIn law, a contract is a binding legal agreement that is enforceable in a court of law. That is to say, a contract is an exchange of promises for the breach of which the law will provide a remedy....
entered into prior to
marriageMarriage is a social union or legal contract between individuals that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged by a variety of ways, depending on the culture or demographic...
or
civil unionA civil union is a legally recognized union 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 with rights, benefits, and responsibilities similar to opposite-sex...
by the people intending to marry. The content of a prenuptial agreement can vary widely, but commonly includes provisions for
division of propertyDivision of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce...
and
spousal supportAlimony, maintenance or spousal support is an obligation established by divorce law in many countries that is based on the premise that both spouses have an absolute obligation to support each other during the marriage unless they are legally separated...
in the event of
divorceDivorce or dissolution of marriage is the final termination of a marriage, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between two persons...
or breakup of marriage.
In some countries, including the
NetherlandsThe Netherlands is a country in Northwestern Europe, constituting the major portion of the Kingdom of the Netherlands. It is a parliamentary democratic constitutional monarchy. The Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east...
, 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
CanadaCanada is a country occupying most of northern North America, extending from the Atlantic Ocean in the east to the Pacific Ocean in the west and northward into the Arctic Ocean...
,
FranceFrance , officially the French Republic , is a country located in Western Europe, with several overseas islands and territories located on other continents. Metropolitan France extends from the Mediterranean Sea to the English Channel and the North Sea, and from the Rhine to the Atlantic Ocean...
,
ItalyItaly , officially the Italian Republic , is a country located on the Italian Peninsula in Southern Europe and on the two largest islands in the Mediterranean Sea, Sicily and Sardinia. Italy shares its northern, Alpine boundary with France, Switzerland, Austria and Slovenia...
, and
GermanyGermany , officially the Federal Republic of Germany , is a country in Central Europe. It is bordered to the north by the North Sea, Denmark, and the Baltic Sea; to the east by Poland and the Czech Republic; to the south by Austria and Switzerland; and to the west by France, Luxembourg, Belgium,...
, have
matrimonial regimeMatrimonial regimes are the property ownership regimes that are set forth in the law to which couples may prescribe under civil law marriage law...
s, in addition to, or some cases, in lieu of prenuptial agreements.
As of 2007,
EnglandEngland is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west and the North Sea to the east, with the English Channel to the south separating it from continental...
and
WalesWales is a country that is part of the United Kingdom, bordered by England to its east, and the Atlantic Ocean and Irish Sea to its west. It is also an elective region of the European Union...
do not enforce prenuptial agreements, but agreements may be upheld at the judge's discretion. These countries also do not have a provision for marital regimes.
There are two types of prenuptial agreements: marriage contract for people who are married or about to be married, and
cohabitation agreementA cohabitation agreement is a form of legal agreement reached between a couple who have chosen to live together . In some ways, such a couple may be treated like a married couple, such as when applying for a mortgage or working out child support...
for unmarried couples. A variation for people who are already married is a
postnuptial agreementA postnuptial agreement is a written contract executed after a couple gets married, or have entered a civil union, to settle the couple's affairs and assets in the event of a separation or divorce. It is normally "notarized" or acknowledged, and is usually the subject of statute of frauds...
, also called a postmarital agreement.
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.
Historically, judges in the United States accepted the idea of prenuptial agreements as corrupting what marriage was supposed to stand for, and often they would not recognize them. Nowadays 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 pre-nup. A pre-nup can dictate not only what happens if the parties divorce, but 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.
Under the Statute of Frauds, 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:
- agreement must be in writing (oral prenups are always prohibited);
- must be executed voluntarily;
- full and/or fair disclosure at the time of execution;
- the agreement cannot be unconscionable;
- it must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgment
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, there is one case that recognized an oral, executed prenup (
Hall v. Hall) in the probate of an estate. 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, 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 Domestic Partner does not have the benefit of federal tax law that favors 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,
considerationConsideration 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 provisionIn public policy, a sunset provision or sunset clause is a provision in a statute or regulation that terminates or repeals all or portions of the law after a specific date, unless further legislative action is taken to extend it...
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 ActThe 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 lawChoice 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 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 propertyCommunity 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.
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 lawCanon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Roman Catholic Church, the Eastern 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
Judaism
In Judaism, the
ketubahA ketubah is a Jewish prenuptial agreement. It is considered an integral part of a traditional Jewish marriage. It states that the husband commits to provide food, clothing and marital relations to his wife, and that he will pay a specified sum of money if he divorces her...
, 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 outlined in Exodus 21:10, 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 AfricaThe High Court of South Africa is a court of law in South Africa. The court, when constituted in 1994, inherited the jurisdiction of the provincial and local divisions of the Supreme Court of South Africa that was formally abolished following the post apartheid settlement...
upheld a
cheremCherem , 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
JohannesburgJohannesburg also known as Jozi or Jo'burg, is the largest city in South Africa. 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
alimonyAlimony, maintenance or spousal support is an obligation established by divorce law in many countries that is based on the premise that both spouses have an absolute obligation to support each other during the marriage unless they are legally separated...
as ordered by a
beth dinA beth 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 Land of Israel...
.
Recently, a movement supporting an additional prenuptial agreement has emerged in some
Modern OrthodoxModern Orthodox Judaism is a movement within Orthodox Judaism that attempts to synthesize traditional observance and values 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 stateSeparation of church and state is a political and legal doctrine that government and religious institutions are to be kept separate and independent from each other...
and certain
halakhic problems that would arise. This situation leaves the wife in a state of
aginutAgunah is a halachic term for a Jewish woman who is "chained" to her marriage. It is also often used nowadays for a woman whose husband refuses or is unable to grant her an official bill of divorce, known as a get.For a divorce to be effective, Jewish law requires that a man grant his wife a get...
, 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 courtA beth 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 Land of Israel...
.
External links