The Enforceability of Prenuptial Agreements

This week Britain’s high court ruled that prenuptial agreements should be enforceable.  Learning about Britain’s long time law to not enforce prenuptial agreements shocked me because California has approved of individuals entering prenuptial agreements for many years; although, the law surrounding such agreements continues to develop.

Prenuptial agreements, also known as premarital or antenuptial agreements, are used to opt-out of a state’s law that would otherwise govern the characterization and disposition of assets and debts acquired during a marriage; and, in some states such as California, spousal support.  The agreement becomes effective upon marriage.   Each state has enacted its own law relating to the content of these agreements as well as the procedure for entering in to these agreements. California, for example, requires the prospective spouses to provide each other with a “fair, reasonable and full disclosure of their property and financial obligations”.  California also requires that the agreement be given to the other prospective spouse seven calendar days before it is executed and that each party shall either have a lawyer of their own who will attest the person is voluntarily and knowingly entering into the agreement; or, there must be a voluntary and knowing waiver of counsel.

These agreements are to be arms’ length transactions; however, given the time line on wedding planning, and the pressure and expense of a wedding, many lawyers question the ability of such an agreement to really be an arm’s length transaction unless it is negotiated well in advance of the wedding.  For this reason, many attorneys no longer participate in these agreements; while others have made a niche practice in representing individuals in the creation of such agreements.  Another, and often overlooked approach to the creation, negotiation and entering into a prenuptial agreement is by the use of a mediator.  A neutral mediator will assist the couple in reaching an agreement and will draft the agreement.  Each party should then have the agreement reviewed by an attorney of their choosing to insure each party fully understands the legal consequences of the agreement.  Not only does mediation open an important discussion regarding money and expectations in the marriage, it also reduces the animosity and stress which often accompany these agreements.  Lastly, using the process of mediation may very well insure the enforceability of the agreement because mediation is a process which improves the chance for informed consent and the voluntariness of entering into such an agreement.  For these reasons, this office will only assist couples in the creation of a prenuptial agreement via use of the mediation process.  As the British legislature starts to consider the appropriate safeguards needed to protect individuals in connection with these agreements, Britain should consider all that California has learned about these agreements.