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

37 Pages Posted: 24 Oct 2009 Last revised: 7 Jun 2013

Margaret Ryznar

Indiana University Robert H. McKinney School of Law

Anna Stępień-Sporek

University of Gdańsk School of Law; Stępień-Sporek, Pawelski, Stoppa Spółka Partnerska Kancelaria Radców Prawnych i Adwokatów (Law Office)

Date Written: October 23, 2009

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.

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

Suggested Citation

Ryznar, Margaret and Stępień-Sporek, Anna, To Have and to Hold, for Richer or Richer: Premarital Agreements in the Comparative Context (October 23, 2009). Chapman Law Review, Vol. 13, No. 1, pp. 27-62, 2009. Available at SSRN: https://ssrn.com/abstract=1493006

Margaret Ryznar (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

Anna Stępień-Sporek

University of Gdańsk School of Law ( email )

Jana Bażyńskiego 6
Gdańsk, 80-180
Poland

Stępień-Sporek, Pawelski, Stoppa Spółka Partnerska Kancelaria Radców Prawnych i Adwokatów (Law Office) ( email )

ul. Jana Matejki 21/2
Gdańsk, 80-232
Poland

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