Family Law and the Enforceability of Prenuptial Agreements
Prenuptial agreements in the United States have a long history.
There is an obvious competition of interests between the desire of people involved in relationship to regulate their own affairs and the drive the institutions of the state to regulate marriage.
Traditionally, the only people that needed prenuptial agreements were wealthy people who needed to protect their assets in a relationship or their estate plan.
It was also common for people entering into a second marriage when they had an existing estate plan which involved children from the first marriage.
Prior to 1960, it was impossible to contract out marital rights except for inheritance rights.
Having a contract of marriage which related to divorce was seen as invalid because of the fundamental principle of the permanence of marriage.
There a was a recognised public policy imperative in encouraging the life long character of marriage.
One of the most important decisions in this regard was the 1970 case of Posner v Posner because it was a landmark case that said that a premarital contract or agreement was in fact enforceable and valid.
The decision was based on a recognition of the changing nature of marriage and the prevalence of divorce in present social conditions.
There is still in fact some debate as to whether a premarital contract is in fact enforceable in the way that a normal contract is enforceable.
It has been argues that even if they are not, there remain the special rules in force in a number of jurisdictions which are specific to family law.
However, there are a number of reasons why a premarital contract is different to a commercial contract.
In the first place, there is idea of commercial negotiations and the equality of power in the bargaining positions when choosing whether or not to enter into the contract.
Generally, the conditions under which it will be acceptable for premarital agreement to be enforced if both the process by which they were negotiated was fair and the terms are fair.
The fairness of an agreement is obviously something that can be disputed but this is the reason that it is necessary to ensure that both parties have a sufficient opportunity to comprehend the agreement that they are being asked to sign and to seek independent legal advice in relation to the terms of the agreement prior to signing the agreement.
If these conditions are not met in some cases, the premartial agreement will be unenforceable.
There is an obvious competition of interests between the desire of people involved in relationship to regulate their own affairs and the drive the institutions of the state to regulate marriage.
Traditionally, the only people that needed prenuptial agreements were wealthy people who needed to protect their assets in a relationship or their estate plan.
It was also common for people entering into a second marriage when they had an existing estate plan which involved children from the first marriage.
Prior to 1960, it was impossible to contract out marital rights except for inheritance rights.
Having a contract of marriage which related to divorce was seen as invalid because of the fundamental principle of the permanence of marriage.
There a was a recognised public policy imperative in encouraging the life long character of marriage.
One of the most important decisions in this regard was the 1970 case of Posner v Posner because it was a landmark case that said that a premarital contract or agreement was in fact enforceable and valid.
The decision was based on a recognition of the changing nature of marriage and the prevalence of divorce in present social conditions.
There is still in fact some debate as to whether a premarital contract is in fact enforceable in the way that a normal contract is enforceable.
It has been argues that even if they are not, there remain the special rules in force in a number of jurisdictions which are specific to family law.
However, there are a number of reasons why a premarital contract is different to a commercial contract.
In the first place, there is idea of commercial negotiations and the equality of power in the bargaining positions when choosing whether or not to enter into the contract.
Generally, the conditions under which it will be acceptable for premarital agreement to be enforced if both the process by which they were negotiated was fair and the terms are fair.
The fairness of an agreement is obviously something that can be disputed but this is the reason that it is necessary to ensure that both parties have a sufficient opportunity to comprehend the agreement that they are being asked to sign and to seek independent legal advice in relation to the terms of the agreement prior to signing the agreement.
If these conditions are not met in some cases, the premartial agreement will be unenforceable.
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