Premarital Agreements

Premarital agreements are contracts made by prospective spouses in contemplation and consideration of marriage. They date back to sixteenth-century England, where prospective spouses used them in attempts to modify the legal rules that would otherwise govern their property rights during and after marriage. By the mid-seventeenth century, premarital agreements were so important that Parliament required them to be in writing. By 1700, they were so commonplace as to be the subject of jokes in the English popular theater. Today in the United States, these agreements are still useful; the rich and famous make them, as do other people. The emerging statutes and cases dealing with their validity recognize the differences between them and other contracts and, therefore, treat them differently.

Most countries enforce premarital agreements if they comply with specified procedural requirements. If, however, the agreement conflicts with some important public policy that overrides the parties' freedom to contract, the agreement will be modified or denied effect. For example, divorce courts in England do not consider themselves bound by premarital agreements regulating the economic incidents of divorce. English law takes the position that the courts' power to do economic justice at divorce is so important that it may not be limited by premarital agreement of the parties. Several Canadian provinces agree. Reliable information about specific rules in countries other than England and Canada is not available.

The American Law Institute Principles of the Law of Family Dissolution take a position consistent with that of the UPAA and most U.S. jurisdictions. In a nutshell, it is that premarital agreements are generally enforceable if they comply with ordinary contract rules, meet specified procedural requirements, and do not work substantial injustice at enforcement.