“Prenup”- Securing the Sacrament

Topics: Marriage, Divorce, Family law Pages: 8 (2403 words) Published: February 21, 2013

A prenuptial agreement is a pre–marital contract between two people for the fair division of money, property or assets in case of a divorce or death. It serves as a mode to distinguish between pre-marital and post-marital assets. Although the distribution of marital assets can be accomplished by a court of law on the dissolution of marriage, some couples opt for a pre-nuptial agreement to feel financially and emotionally secure. A “prenup” may provide protection from the partner’s debt loads, prevent business concerns from getting divided, ensure spousal support in terms of alimony, and guarantee child support and remarriage rights and even work on custody issues.


Marriage in most cultures is considered a sacrament, thus the idea of introducing a contractual agreement between parties prior to marriage seems to be blasphemous. But that is the ethical argument. High profile asset settlement like the one that resulted from the Mills-McCartney split portrays marriage as a “romantic folly”. Premarital agreements are most powerful in short childless marriages, their power decreases as passage of time and presence of children.

The argument that premarital agreements and no fault divorce are correlated and in effect promote opportunistic behavior is common among several jurists. It is, however, human nature to be opportunist. Thus when there is no legal incentive to perform spousal duties, and the marriage can be broken up citing “irreconcilable differences”; the situation arises when a spouse gives up his/her employment or postpones his/her career in order to make the marriage work. Such a step leaves the said partner having invested a significant amount of opportunity in the marriage, and if the default rules are petty as per post marital maintenance, leaves him/her at the mercy of the other partner. In McFarlane v. McFarlane it was stated that women who sacrificed their careers to raise children would receive compensation that could be claimed post divorce. By converse, it may be argued that a fault based divorce system relies solely upon evidence, which may be difficult to procure while examining a marriage, postmortem. Reduction or denial of alimony is common in legal systems that champion a no fault divorce system, so that marital opportunist behavior is not rewarded.

In such a situation, it is not difficult to envisage the premarital agreement playing a significant role in protecting future spouses against opportunistic behavior. A prenuptial agreement agreeing to waive of the rights of either party to sue for divorce is thus void as it is in violation of public policy.

Prenuptial agreements are the easiest way to avoid messy divorces where mutual mudslinging is often inevitable. The disclosure of assets and demands that bask in the financial stratosphere often attract unnecessary attention to an already warped household. An agreement drafted prior to entering the state of holy matrimony serves to ensure that both spouses are aware of their wants and needs in case a separation is necessary in the future; and is a simpler method to ensure that a child is financially taken care of despite his parents choosing to part ways.


A prenuptial agreement and a no-fault divorce are almost synonymous in their portrayal of marriage as a contract voidable at the option of either party rather than a holy sacrament that cannot be set aside for except for some physical or mental infirmity of a person. In Italian and Dutch Law, a waiver of alimony in a premarital contract is generally unenforceable. French Judges determine the post-marital compensation payment regardless of an existing prenuptial agreement. In English Law, premarital maintenance agreements are not binding on the courts, although Judges may take them into account while deciding alimony.[1] A pre nuptial agreement is fairly...
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