This chapter analyzes Chapter 7 of the Principles, which deals with agreements. It contrasts the ALI's treatment of premarital, marital, and separation agreements with both current doctrine and arguments for respecting greater private ordering regarding marriage. While largely agreeing with the ALI's approach, this chapter urges an approach somewhat more respectful of party choice and more sensitive to the variety of marriage-related agreements.

The current treatment of premarital, marital, and separation agreements reflects a view that, in a world where entrance into marriage and exit from it is largely within the control of the partners, it seems consistent to allow the partners some choice regarding the nature of the marriage they decide to enter, or not to exit. Part I of this chapter deals with premarital agreements; Part II with marital agreements; and Part III with separation agreements. Each part begins with an overview of current law, followed by a summary of the Principles' position, and an evaluation of that position.

Premarital Agreements

Overview and Current Doctrine

Premarital agreements, also called “antenuptial” and “prenuptial” agreements, are entered into when marriage is imminent, to settle, create, or modify certain rights between the parties during their marriage, upon the death of one of the partners, or upon divorce. The following discussion focuses on premarital agreements meant to modify the rights of the spouses upon divorce.