Premarital Agreements 33
invalid and of no legal effect
over the past four decades along with views about men and women, fault-based
divorce, and the institution of marriage generally. We now live in a society in which
the rate of divorce has risen and few presume that marriage is a permanent union. As
a result, we have an increasing number of individuals, both male and female, taking
steps to develop their own approaches to distribution of property upon divorce or
death. A premarital agreement is one vehicle for accomplishing this end.
The opinion in the landmark Posner case (see Case 2.1) describes the shift in
public policy from one that presumes the permanence of marriage to one that
acknowledges and enforces, under certain conditions, agreements regulating rights
upon the dissolution of marriage. In Posner, the wife appealed the portion of the
divorce decree that awarded the divorce to her husband and alimony to her in the
amount of $600 a month pursuant to the terms of a premarital agreement between
the parties. The wife’s position was that, consistent with prior case law, the agree-
ment should not be enforced. The court held that such agreements should no
longer be considered void as contrary to public policy when the divorce is pursued
in good faith on proper grounds.
CASE 2.1 Posner v. Posner, 233 So.2d 381 (Fla. 1970)
FROM THE OPINION
At the outset, we must recognize that there is a vast difference between a con-
tract made in the market place and one relating to the institution of marriage.
It has long been the rule in a majority of the courts of this country and in this
state that contracts intended to facilitate or promote the procurement of a divorce
will be declared illegal as contrary to public policy....
The state’s interest in the preservation of the marriage is the basis of the rule
that ...an antenuptial agreement by which a prospective wife waives or limits her
right to alimony or to the property of her husband in the event of a divorce or sep-
aration, regardless of who is at fault, has been in some states held to be invalid....
There can be no doubt that the institution of marriage is the foundation of the
familial and social structure of our nation and, as such, continues to be of vital interest
to the State; but we cannot blind ourselves to the fact that the concept of the “sanctity”
of a marriage—as being practically indissoluble, once entered into—held by our ances-
tors only a few generations ago, has been greatly eroded in the last several decades
With divorce such a commonplace fact of life, it is fair to assume that many
prospective marriage partners whose property and familial situation is such as to
generate a valid antenuptial agreement settling their property rights upon the
death of either, might want to consider and discuss also—and agree upon, if possi-
ble—the disposition of their property and the alimony rights of the wife in the
event their marriage, despite their best efforts, should fail....
We know of no community or society in which the public policy that
condemned a husband and wife to a lifetime of misery as an alternative to the
opprobrium of divorce still exists. And a tendency to recognize this change in
public policy and to give effect to the antenuptial agreements of the parties relating
to divorce is clearly discernible....
The full opinion in this case is available on the companion website. What are the
major reasons for not recognizing premarital agreements? What are the major rea-
sons for enforcing them? If you were presently contemplating getting married,
would you want to have such an agreement? Why?