To Have and to Hold, for Richer or Richer: Premarital Agreements in the Comparative Context

Abstract:     
The premarital agreement, perhaps one of the world’s most unromantic documents, also happens to be quite powerful and complex. Although its most highly-publicized use has been to control post-divorce property division, the premarital agreement’s most significant importance is in its power to circumvent the statutory defaults governing spouses’ rights and responsibilities not only during divorce or death, but also during marriage. However, the enforceability of premarital agreements is subject to procedural and substantive review in the United States. Such agreements also raise universal public policy issues with regard to the meaning of fairness and the limits on freedom of contract. To further understand and address these issues, this Article considers premarital agreements in the comparative context, analyzing the approach of the United States, as well as that of France, Germany, Switzerland, and Poland. The resulting lessons implicate the freedom of contract, the potential characteristics of the regulatory framework surrounding premarital agreements, and the popularity of such agreements among prospective spouses.

Number of Pages in PDF File: 36

Keywords: family law, domestic relations, comparative law, comparative family law, premarital agreement, prenuptial agreement, marital agreement, France, Germany, Switzerland, Poland, contract, prospective spouses, divorce, property division, community property, equitable distribution

Accepted Paper Series