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VALIDITY OF PRE AND POST-NUPTIAL AGREEMENTS

When considering pre and postnuptial agreements in an international context one must consider whether they will be enforced in the country in which enforcement is sought. Not all countries have the same rules. Far from it. Washington State will enforce them if they reach certain fairness standards. See In re Marriage of Matson 107 Wn. 2d 479,730 P.2d 668 (1986) for the prenuptial agreement two-prong test for validity. For postnuptial agreements, see, for example, In re Marriage of Zier, 136 Wn.App.40,147 P.3d 624 (2006) review denied,162 Wn.2d 1008 (2007) and  the earlier case of In re Marriage of Hadley, 88 Wn.2d 649,565 P2d 790 (1977).

 It is clear from reading the Washington cases that, in general (there are refinements to this rule) that an agreement does not have to be substantively fair to be enforceable, if the procedure leading up to the agreement was fair.  It is also reasonably clear in Washington, that even if the agreement is based on something other than local family law, that the same analysis will be applied. See, e.g., In re Marriage of Obaidi, 154 Wn. App. 609, 226 P.3d 787, review denied, 169 Wn.2d 1024 (2010). Obaidi, involved a prenuptial agreement (a mahr) based on Islamic Law. The couple signed the agreement in Washington during an engagement ceremony. The Washington Court of Appeals found it to be invalid as there had been no meeting of the minds on the essential terms. Id. at 617.

 The following references to foreign laws are taken from the 2011 Family Law Jurisdictional Comparisons, First edition 2011 published by Thompson Reuters. A new edition will be published in 2013; the laws may have changed since the older edition. They are referenced herein for the purposes of illustration of different approaches.

  • In Argentina domestic (ie. Argentinian) pre and post nuptial agreements are unenforceable. However, the court may enforce the agreement if it was valid in the former foreign marital state. See Family Law Jurisdictional Comparisons, first edition, 2011, Thompson Reuters by Jorge Ricardo Videla and Maria de la Paz Videla, at page 7.
  • France recognizes both pre and post nuptial agreements as an exercise of the freedom to make a marriage contract as long as they conform to public policy. See Family Law Jurisdictional Comparisons, first edition 2011, Thompson Reuters, by Veronique Chaveau, Charlotte Butruille-Cardew and Alexandre Boiche, at page 116.
  • In England, as of the publication of the 2011 Family Law Jurisdictional Comparisons, the law had changed, due to Radmacher v Granatino (2010) UKSC 42, to provide for a rebuttable presumption in favour of prenuptial agreements. The author, James Stewart, states, at page 83 of the 2011 Family Law Jurisdictional Comparisons, that the Radmacher case will ensure that “great weight will now be given to pre and post nuptial agreements unless the terms are manifestly unfair”. He follows his comment by referencing the fact that the Law Commission was, at the time of the publication considering the law on that issue.