Prenuptial agreement
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Definition
A prenuptial agreement or antenuptial agreement, commonly abbreviated to prenup or prenupt, is a contract entered into by two people prior to marriage or civil union. The content of a prenuptial agreement can vary widely, but commonly includes provisions for the division of property should the couple divorce and any rights to spousal support during or after the dissolution of marriage.Types of prenups
There are two types of prenups: marriage contract for people who are married or about to be married, and cohabitation agreement for unmarried couples.Legal recognition
Laws around the world vary in their recognition of such agreements.Historically judges in the United States frowned upon prenuptial agreements as corrupting what marriage was supposed to stand for, and often they would not recognize them. Nowadays prenuptial agreements are valid in all 50 states and the District of Columbia. However, they still may not be enforced. It's quite common to have legal advice to the effect that both parties should have lawyers present or a judge is likely to consider one of the parties coerced or otherwise taken advantage of. Prenups, by law, cannot limit the default guidelines set by child-support agencies, except where the parties set forth what the default (i.e., "presumptive") award would be, and agree that this sum does not serve the child(ren)'s best interests, what other figure is more suitable, and why. Thus, pre-nups are, at best, a partial solution to obviating some of the risks of marital property disputes in times of divorce. They are not the final word.
In England and Wales, prenuptial agreements remain generally unenforceable.
In Canada, prenuptial agreements are enforceable [link]. In many provinces, there are specific statutory provisions that define what a prenuptial agreement is and what can be contained in it. For instance, in Ontario, the Family Law Act [link] defines a marriage contract, which is a prenuptial agreement for married couples and a cohabitation agreement, which is a similar agreement for unmarried couples. In Canada, prenuptial agreements can generally contain any provisions regarding the division of property upon separation or even death. They can also deal with spousal support, although if the marriage is a long-term one where there are children, a court may be inclined not to follow the spousal support provisions if they are unfair. Generally, a prenuptial agreement cannot deal with child support or child custody.
Prenuptial agreements are now enforceable in Australia following changes to the Family Law Act in December 1995.
American Law
In the United States, prenuptial agreements are recognized in all 50 states and the District of Columbia. Likewise, in all jurisdictions, five elements are required for a valid prenuptial agreement: 1) agreement must be in writing (oral prenups are always prohibited); 2) must be executed voluntarily 3) full disclosure and/or fair at the time of execution; 4) the agreement can’t be unconscionable; 5) it must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgement, before a notary public. Of note, unlike all other contract law, consideration is not required, although a minority of courts point to the marriage itself as the consideration. Through a prenup, a spouse can completely waive rights to property, alimony or inheritance as well as the elective share and get nothing in return.
- Sunset Provision: When inserted into a prenup, after a certain amount of time, the agreement will lapse/expire. In a few states, such as Maine, the prenup will automatically lapse after the birth of a child, unless the parties renew the agreement. In other states, a certain number of years of marriage causes a prenup to lapse. In states that have adopted the UPAA (Uniform Prenuptial Agreement Act), no sunset provision is provided by statute, but one could be privately contracted for.
- Children: There is no enforcement of any prenuptial provision that would give less than what would be provided to a child by the court for child support purposes. Prenuptials are thus incapable of affecting what a child would receive via child support from the non-custodial parent.
Prenuptial Agreements and Catholicism
Prenuptial agreements are a matter of civil law, so Catholic canon law does not rule them out in principle (for example, to determine how property would be divided among the children of a prior marriage upon the death of one spouse).
But in practice prenuptials may run afoul of Church law in a number of ways. For example, they cannot subject a marriage to a condition concerning the future (e.g., an agreement about the dividing of assets in case of divorce). The Code of Canon Law provides: "A marriage subject to a condition about the future cannot be contracted validly" (CIC 1102).
The Canon Law: Letter and Spirit, a commentary on canon law, explains that condition may be defined as "a stipulation by which an agreement is made contingent upon the verification or fulfillment of some circumstance or event that is not yet certain." It goes on to state that "any condition concerning the future attached to matrimonial consent renders marriage invalid." For example, a marriage would be invalid if the parties stipulated that they must have children or they have the right to divorce and remarry someone else.
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