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A prenuptial agreement, antenuptial agreement, or premarital agreement (commonly referred to as a prenup), is a written contract entered into by a couple prior to marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony (spousal support) with agreed-upon terms that provide certainty and clarify their marital rights.[1][2] A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.[3]
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In some countries, including the United States, Belgium and the Netherlands, the prenuptial agreement not only provides for what happens in 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, France, Italy, and Germany, have matrimonial regimes, 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.[4] When divorce is imminent, postnuptial agreements are referred to as separation agreements.[5]
Laws vary between both states and countries in both what content they may contain and under what conditions and circumstances that a prenuptial agreement may be declared unenforceable, such as an agreement signed under fraud, duress or without adequate disclosure of assets.
In India, prenuptial agreements are very rare and do not have any governing laws. However, with rising divorce rates, people are showing increasing interest in them. Some lawyers are of the opinion that prenups don't have legal sanctity in India. However, some form of contract is signed in some cases, usually among affluent citizens. But, the agreements need to be reasonable and not violate pre-existing laws like the Hindu Marriage Act. Indian courts allow a memorandum of settlement to be signed during divorces. But, no court has yet been asked to enforce a prenup.[6]
Goa is the only Indian state where a prenuptial is legally enforceable, as it follows the Portuguese Civil Code, 1867. A prenuptial agreement may be signed between the two parties at the time of marriage, stating the regime of ownership. If a prenuptial has not been signed, then the marital property is simply divided equally between the husband and wife.[9][10]
The prenuptial agreement in Thailand is concluded by mutual consent of the man and woman who want to marry. Under Thai law, a prenuptial agreement is recognized by the Commercial and Civil Code of Thailand. A valid and enforceable Thai prenuptial agreement legally requires that
These conditions are found at clause 1466 of the Commercial and Civil Code of Thailand.In accordance with the laws on Thai marriage, the prenuptial agreement mainly relates to assets and financial implications of marriage and establishes conditions of ownership and management of personal and concrete joint property and potential division of marital assets, if the marriage will be dissolved. The prenuptial agreement also includes a list of each side's personal assets at the time of the marriage and guarantees, that debts and property before the marriage remain in possession of the initial owner or debtor.Personal property includes:
Prenuptial agreements have long been recognized as valid in several European countries, such as France, Belgium, the Netherlands, Germany, Poland, Switzerland, Sweden, Denmark, Norway and Finland. 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, 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).
Marriage (prenuptial) contract can be concluded by a woman and a man, who applied for registration of their marriage as well as by spouses. Underaged person, who wants to conclude a marriage contract before registration of the marriage, is to have a signed consent of his/her parent or custodian certified by a notary.
A prenuptial agreement is distinct from the historic marriage settlement which was concerned not primarily with the effects of divorce but with the establishment and maintenance of dynastic families, or a divorce settlement entered into by parties in connection with dissolving their marriage.
Prenuptial agreements in Canada are governed by provincial legislation. Each province and territory in Canada recognizes prenuptial agreements. For instance, in Ontario prenuptial agreements are called marriage contracts and they are recognized by section 52 of the Family Law Act.[18]
In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia, and they are enforceable if prepared in accordance with state and federal law requirements. It has been reported that the demand for prenuptial agreements in the United States has increased in recent years, particularly among millennial couples.[19][20][21][22] In a 2016 survey conducted by the American Academy of Matrimonial Lawyers (AAML), member attorneys reported seeing an increase in the total number of clients seeking prenuptial agreements before marriage in recent years, particularly with the millennial generation, with the strongest interest in protecting increases in the value of separate property, inheritances, and division of community property.[23]
Currently, 28 States and the District of Columbia have adopted a version of the Uniform Premarital Agreement Act (UPAA) or the updated Uniform Premarital Agreements Act (UPMAA). The UPAA was passed in 1983 by the Uniform Law Commission (ULC) to promote more uniformity and predictability between state laws relating to these contracts in an increasingly transient society. The UPAA was partly enacted to ensure that a prenup that was validly entered into in one state would be honored by the courts of another state where the couple might get a divorce. The UPMAA was subsequently promulgated in 2012 by the ULC to clarify and modernize inconsistent state laws, and create a uniform approach to all prenuptial agreements and postnuptial agreements that:
The laws enacted by states adopting the UPAA/UPMAA do have some variances from state-to-state, but this framework of laws has certainly made it much easier for legal practitioners to prepare enforceable marital agreements for clients by clearly stating the requirements. For instance, under Florida law, there is a very material difference in what is required to enter into a legally binding prenuptial agreement versus a postnuptial agreement. In order to validly waive the spousal rights that would ordinarily be available to a surviving spouse under Florida law (such as homestead, elective share, exempt property, family allowance, etc.), the parties have to make a full and fair disclosure of their assets and liabilities to each other before entering into a postnuptial agreement. In contrast, no financial disclosure is required to waive those same spousal rights in a premarital agreement executed before marriage.[30] That said, if the lack of disclosure results in a prenup being unconscionable (unfair to one spouse) under Florida's Uniform Premarital Agreement Act, it may not be enforceable on those grounds.[31]
Even in states that have not enacted the UPAA/UPMAA like New York, duly executed prenuptial agreements are accorded the same presumption of legality as any other contract.[32] It is not necessary that a couple signing a prenuptial agreement retain separate attorneys to represent them, as long as each party understands the agreement and signs it voluntarily with the intention to be bound to its terms. There is a strong public policy favoring parties ordering and deciding their own interests through contracts.[33] There are no state or federal laws that force adults with contractual capacity to have to hire legal counsel to be able to enter into a marital contract such as a prenuptial agreement, except for a California law that requires that the parties be represented by counsel if spousal support (alimony) is limited by the agreement.[34] A prenuptial agreement may be challenged if there is evidence that the contract was signed under duress.[35] Whether a premarital agreement was signed under duress must be proven by the facts and circumstances of each case. For example, it has been held that a spouse's claim that she believed that there would be no wedding if she did not sign a prenuptial agreement, where the wedding was only two weeks away and wedding plans had been made, was insufficient to demonstrate duress.[36]
Prenuptial agreements may limit the parties' property and spousal support rights, but also to guarantee either party the right to seek or receive spousal support up to a certain limit. 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 of one's 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 one's spouse's estate.[37] 2ff7e9595c
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