Can a written contract rewrite the legal rules of marriage?
Beyond the wedding vows lies a complex legal instrument designed to override default marital laws. From protecting assets during bankruptcy to defining property rights after death, prenuptial agreements allow couples to bypass standard state regulations and create their own private legal regime.
A prenuptial agreement—also known as an antenuptial or premarital agreement—functions as a written contract entered into before a marriage or civil union. Its primary purpose is to supersede default laws regarding the division of property, retirement benefits, savings, and alimony. In jurisdictions like the United States, Belgium, and the Netherlands, these documents can even protect specific assets from being seized during bankruptcy.
The legal enforceability of these contracts varies significantly across the globe. In India, prenups lack formal governing laws and their legal sanctity is debated, though they may fall under the Indian Contract Act of 1872. Conversely, Goa is the only Indian state where they are legally enforceable due to the Portuguese Civil Code of 1867. In Thailand, the Commercial and Civil Code requires that agreements be made before marriage, signed before two witnesses, and entered into the Marriage Register to be valid.
The evolution of judicial thought is perhaps most evident in the United Kingdom. Historically, England and Wales viewed prenups as unenforceable due to public policy concerns. However, the 2010 Supreme Court test case, Radmacher v Granatino, shifted this landscape. The court established that agreements entered into freely with full appreciation of their implications should be given effect, provided the arrangement is fair and considers the interests of any children involved.
While these agreements focus on financial autonomy, they are not limitless. In Ukraine, the Family Code prohibits marriage contracts from regulating personal relationships between spouses or children, or from leaving a spouse in a poor material state. Similarly, in Thailand, any content deemed against good morals or the law is invalid.
Source: Prenuptial agreement
