Filed 3/26/98




In re the Marriage of CANDACE PENDLETON and BARRY I. FIREMAN. B113293

(Super. Ct. No. SD010709)






    APPEAL from an order of the Superior Court of Los Angeles County, Keith Clemens, Judge. (Retired judge of the superior court, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.) Reversed and remanded with directions.

    Lascher & Lascher, Wendy C. Lascher, Wasser, Rosenson & Carter and John Foley for Appellant.

    Kolodny & Anteau, Ronald W. Anteau and Peter Hermes for Respondent.

    In anticipation of marriage, two wealthy and well-educated people represented by separate counsel agreed that, in the event the marriage did not last until death did them part, neither would seek spousal support from the other. Four years later, the marriage ended in dissolution. The wife sought substantial spousal support, claiming her waiver was unenforceable because it was contrary to California's public policy. The trial court rejected the husband's argument to the contrary, concluded that (as a matter of law) all premarital spousal support waivers are void and unenforceable, and ordered the husband to pay support. He appeals. We reverse.

    In 1983, the National Conference of Commissioners on Uniform State Laws approved and recommended for enactment in all states the Uniform Premarital Agreement Act. See footnote 1 In a prefatory note, the Commissioners explained the need for the Uniform Act: "The number of marriages between persons previously married and the number of marriages between persons each of whom is intending to continue to pursue a career is steadily increasing. For these and other reasons, it is becoming more and more common for persons contemplating marriage to seek to resolve by agreement certain issues presented by the forthcoming marriage. However, despite a lengthy legal history for these premarital agreements, there is a substantial uncertainty as to the enforceability of all, or a portion, of the provisions of these agreements and a significant lack of uniformity of treatment of these agreements among the states. The problems caused by this uncertainty and nonuniformity are greatly exacerbated by the mobility of our population. Nevertheless, this uncertainty and nonuniformity seem reflective not so much of basic policy differences between the states but rather a result of spasmodic, reflexive response to varying factual circumstances at different times. Accordingly, uniform legislation conforming to modern social policy which provides both certainty and sufficient flexibility to accommodate different circumstances would appear to be both a significant improvement and a goal realistically capable of achievement." (9B U.L.A., Uniform Premarital Agreement Act, Prefatory Note, p. 369.)

    In 13 sections, the Uniform Act gives us definitions, formalities, and procedures for the adoption, amendment, revocation and enforcement of premarital agreements. More specifically, subdivision (a) of section 3 of the Uniform Act permits parties to a premarital agreement to "contract with respect to: [¶] (1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; [¶] (2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; [¶] (3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; [¶] (4) the modification or elimination of spousal support; [¶] (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement; [¶] (6) the ownership rights in and disposition of the death benefit from a life insurance policy; [¶] (7) the choice of law governing the construction of the agreement; and [¶] (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty." (Italics added.) See footnote 2

    In a comment to section 3, the Commissioners noted "a split in authority among the states as to whether a premarital agreement may control the issue of spousal support. Some few states do not permit a premarital agreement to control this issue . . . . However, the better view and growing trend is to permit a premarital agreement to govern this matter if the agreement and the circumstances of its execution satisfy certain standards . . . ." When the comment was written in 1983, the minority view was represented by citations to cases from Iowa and Wisconsin, the "better view" by citations to cases from Colorado, Connecticut, Illinois, Massachusetts, Oklahoma, and Oregon. California was not mentioned in either group. See footnote 3

    In 1985, California adopted the Uniform Premarital Agreement Act. (Fam. Code, §§ 1600, 1601 [former Civ. Code, §§ 5300, 5302].) See footnote 4 With one notable exception, the California Act expressly permits parties to a premarital agreement to contract with regard to all of the items listed in section 3 of the Uniform Act -- the exception is subdivision (a)(4) of section 3 of the Uniform Act, which is omitted, leaving the California Act silent on the subject of the parties' right to agree about "the modification or elimination of spousal support." (Fam. Code, § 1612, subd. (a); see 1994 Family Code, 23 Cal. L.Revision Comm'n Reports 1 (1993) § 1612.) Fortunately, the reason for this omission is clear.

    As originally proposed, Senate Bill Number 1143 of 1985 tracked the Uniform Act and thus did include subdivision (a)(4) of section 3 of the Uniform Act. (Sen. Bill No. 1143 (1985-1986 Reg. Sess.) Mar. 7, 1985.) See footnote 5 The spousal support waiver provision was deleted by a subsequent amendment (Assem. Amend. to Sen. Bill No. 1143 (1985-1986 Reg. Sess.) Aug. 28, 1985) after the Legislature was advised by its staff that California's courts did not "permit a premarital agreement to control this issue." (Assem. Subcommittee on Administration of Justice, Report on Sen. Bill No. 1143 for the Aug. 19, 1985 hearing, pp. 3-4 ["See In re Marriage of Dawley [(1976)] 17 Cal.3d 342 . . . , in which the court notes that the enforcement of provisions in premarital contracts to waive or limit spousal support rights is barred because such provisions are considered promotive of divorce"].) Thus, the amendment deleting subdivision (a)(4) of section 3 of the Uniform Act was recommended to "allow California case law to continue to prevail on the issue of spousal support in premarital agreements." (Assem. Subcommittee on Administration of Justice, Report on Sen. Bill No. 1143 for the Aug. 19, 1985 hearing, supra, p. 3, italics added.) After the August 19 amendment, the Assembly Subcommittee on Administration of Justice reported that the bill, as amended, meant that "California case law would . . . prevail on the issue of spousal support in premarital agreements." (Assem. Subcommittee on Administration of Justice, Report on Sen. Bill No. 1143, as amended on Aug. 28, 1985, p. 3, italics added.)

    It is clear, therefore, that the Legislature deleted the express authorization for spousal support waivers because they recognized that the enforceability of such waivers is a question for the courts, not the Legislature.

    Accordingly, the question is whether, given the current state of case law and "recent" legislative amendments, spousal support waivers in premarital agreements violate any public policy or any statute imposing a criminal penalty. (Fam. Code, § 1612, subd. (a)(7).) Since no one suggests that a waiver would violate a statute imposing a criminal penalty, the only issue is whether it would violate public policy. It would not.

    Traditionally, a premarital agreement in which either spouse or both of them attempted to waive or limit spousal support was void as against public policy (the theory was that it would facilitate divorce). (Barham v. Barham (1949) 33 Cal.2d 416, 427-428; In re Marriage of Higgason (1973) 10 Cal.3d 476, 485-488 [invalidating a premarital agreement that would have relieved a wealthy 73-year-old woman of her obligation to support her impoverished 48-year-old husband while they were living together].) The rule was explained in Pereira v. Pereira (1909) 156 Cal. 1, where the husband and wife had agreed to limit his support and property obligations to $10,000: "The real effect of the contract to pay the [$10,000], so far as the husband is concerned, would be to provide against liability for a contemplated wrong to be subsequently inflicted by him upon his wife, and to liquidate such liability in advance of the commission of the wrong. The evidence and findings show that the [husband] was then possessed of property worth about [$77,000], was engaged in a very lucrative business, and was receiving an income of about [$11,000] a year which he had every reason to believe would continue. By this contract, if valid, he was left free to inflict upon his wife the most grievous marital wrongs, such as would compel her to obtain a divorce, secure in the protection of his contract that [$10,000] would satisfy all her claims against him of a pecuniary nature or in relation to the community property. If he should, after its execution, be moved by evil impulse to commit anew the offenses against his wife which first gave her cause for divorce, or other acts having the same legal effect, the existence of a valid contract of this sort could not but encourage him to yield to his baser inclinations, and inflict the injury . . . . The law does not countenance such agreements." See footnote 6 (Id. at pp. 3-5, italics added.)

    Twenty years after Barham, California adopted the Family Law Act of 1969 (former Civil Code section 4000 et seq.), and repealed the statutory scheme that had permitted divorce only upon a showing of fault (such as adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance or conviction of a felony). (In re Marriage of McKim (1972) 6 Cal.3d 673, 676-678.) "The basic substantive change in the law [was] the elimination of fault or guilt as grounds for granting or denying divorce and for refusing alimony and making unequal division of community property. Instead of grounds for divorce based on fault the Legislature sought to provide 'a basis for dissolution which is descriptive of the actual reasons underlying marital breakdown.' . . . The grounds of dissolution which the act substitutes for the traditional concept of fault are 'Irreconcilable differences, which have caused the irremediable breakdown of the marriage.'. . . 'Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.'" (Id. at pp. 678-679, fns. and citations omitted; see also In re Marriage of Walton (1972) 28 Cal.App.3d 108; Hogoboom & King, Cal. Practice Guide: Family Law (Rutter 1997) ¶ 2:31 et seq.) See footnote 7

    There were other changes during the 1970's. Traditionally, there had been no pretense of spousal equality and the husband had been given the unilateral right to manage and control virtually all of the couple's community property. (Wilcox v. Wilcox (1971) 21 Cal.App.3d 457, 459; 11 Witkin, Summary of Cal. Law, supra, Community Property, §§ 103-105, pp. 501-504 [the wife did retain the power of testamentary disposition over her half of the community estate and the right to use her share to support her children].) In 1973, the Legislature gave both spouses management and control of the community property, "with like absolute power of disposition, other than testamentary, as the spouse has of the separate estate of the spouse." (Former Civ. Code, § 5125, subd. (a), now Fam. Code, §§ 1100-1103.) Around the same time, the Legislature mandated the equal division of community property upon dissolution of the marriage, and prohibited nonconsensual unequal divisions, a practice that had been used to punish the "guilty" party for adultery, extreme cruelty or incurable insanity. (In re Marriage of Brigden (1978) 80 Cal.App.3d 380, 389-390; 11 Witkin, Summary of Cal. Law, supra, Community Property, § 160, pp. 567-568). See footnote 8

    In spite of these dramatic changes, and in spite of the 1985 adoption of the California Act, our courts have not reconsidered the parties' right to include spousal support waivers or limitations in a premarital agreement that can permissibly dispose of all of their property during marriage, upon divorce, and even upon their death. In our view, the public policy considerations of the 19th century have little, if anything to do with the lives we live on the eve of the 21st century. A system of laws that has abandoned fault-based divorce and unequal control of community property in favor of a statutory scheme imposing mutual and androgynous support obligations (Fam. Code, §§ 4300, 4301, 4302) should not per se prohibit premarital spousal support waivers or limitations. All the protection the parties need is expressly provided by the California Act. (Fam. Code, § 1615.) See footnote 9

    There is no binding Supreme Court authority. The Supreme Court has not addressed the substance of this issue since before the California Act was adopted or at any time since the adoption of no-fault divorce. In re Marriage of Dawley, supra, 17 Cal.3d 342 (the case relied on by the Legislature when it adopted the California Act), holds only that a "rule measuring the validity of antenuptial agreements by the subjective contemplation of the parties hazards the validity of all antenuptial agreements," and that "an antenuptial agreement violates the state policy favoring marriage only insofar as its terms encourage or promote dissolution." (Id. at pp. 351-352.) To the extent In re Marriage of Higgason, supra, 10 Cal.3d at page 485 had "asserted that a valid antenuptial agreement must be made in contemplation of a marriage lasting until death," Dawley disapproved Higgason (In re Marriage of Dawley, supra, 17 Cal.3d at pp. 351-354), explaining that a "man and woman entering into marriage may pledge their faith 'til death do us part,' but the unromantic statistics show that many marriages end in separation or dissolution. Spouses who enter into an antenuptial agreement cannot forecast the future; they must, as a realistic matter, take into account both the possibility of lifelong marriage and the possibility of dissolution." (Id. at p. 352.)

    Dawley (which was decided in 1976) did not cite or consider the 1969 and later amendments to the laws governing divorce, community property and support, and the cases Dawley cites -- Barham v. Barham, supra, 33 Cal.2d 416 [1949], Whiting v. Whiting, supra, 62 Cal.App. 157 [1923], and Barker v. Barker (1956) 139 Cal.App.2d 206 -- were all decided before 1969. Dawley is therefore not controlling. See footnote 10 (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 394 [the nature of the common law requires that each time a rule of law is applied, it must be carefully scrutinized to make sure that the conditions of the times have not so changed as to make further application of it unjust].) Since the Legislature adopted the California Act with the understanding that "California case law would . . . prevail on the issue of spousal support in premarital agreements" (Report for Assem. Third Reading, Sen. Bill No. 1143, as amended Aug. 28, 1985, p. 3), it has given us the green light to recognize the simple fact that premarital spousal support waivers and limitations no longer violate public policy. (Pacific Gas & Electric Co. v. Superior Court (1973) 33 Cal.App.3d 321, 326 ["a decision prior to the enactment of a statute affecting the subject is not a controlling precedent"]; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 9:21 et seq.) See footnote 11

    A rule that does not per se prohibit all spousal support waivers or limitations is consistent with other, related laws. Where there are no minor children, there is no public policy prohibition against a premarital waiver of a spouse's right to a family allowance from the other spouse's probate estate or of a probate homestead. (Prob. Code, § 6540 et seq.; Estate of Wamack (1955) 137 Cal.App.2d 112, 115-116; Estate of Howe (1947) 81 Cal.App.2d 95, 99.) Where minor children are not affected, premarital limitations on property rights of all kinds (present or future, legal or equitable, vested or contingent, in real or personal property, and including income and earnings) are permissible, and are expressly approved by the California Act. (Fam. Code, § 1612; Hall v. Hall (1990) 222 Cal.App.3d 578, 583-584.) See footnote 12 We fail to see any public policy reason (or any reason at all) to permit all of these agreements but not those covering spousal support. The decision to marry is among the most personal and private choices that two people can make, and there is something perverse about a system of laws that allows a prospective spouse to make premarital decisions controlling the disposition of all of the spouse's property upon death -- which may leave the surviving spouse without any form of continuing support -- but prohibits premarital decisions controlling support obligations if the marriage ends in divorce. (See Posner v. Posner (Fla. 1970) 233 So.2d 381, 385 [where the Florida Supreme Court reached back to "matrimonial causes" cognizable only in the Ecclesiastical Courts and marched forward to the conclusion that "the change in public policy towards divorce requires a change in the rule respecting antenuptial agreements settling alimony and property rights [so that] such agreements should no longer be held to be void ab initio as 'contrary to public policy.'"].) See footnote 13
    Love, unlike death and taxes, has never been certain and it is less so now than at any time in the past. Since the mid-1980's, roughly one-half of all marriages have ended in divorce. In 1990, 1,175,000 divorces were granted. In 1992, the United States Bureau of the Census reported that (in 1991) 15.8 million people (8.6 percent of the population) listed their marital status as divorced. In 1996, the United States Bureau of the Census reported that (in 1995) 17.6 million people (9.2 percent of the population) were divorced. Other statistics show that about 60 percent of second and subsequent marriages will end in divorce. While the general reasons for adoption of the Uniform Premarital Agreement Act are still valid (an increase in the number of remarriages and an increase in the number of two-career families), experience has added an infinite number of reasons for couples to enter premarital agreements, and their use has increased exponentially. Science and technology have given us the expectation of longer lives. They have also permitted increased mischief by intrusion into our private affairs, and many premarital agreements are entered to avoid the state's interference in the event the spouses outlive their marriage but not their retirement accounts. As more women enter the workforce with the intent to remain there as professionals and executives, marriage frequently comes later rather than earlier, increasing the odds that both spouses will have acquired substantial assets by the time they marry. (Statistical Abstract of the United States 1992, p. 44, Table 49 (112th ed. 1992); Statistical Abstract of the United States 1996, p. 54 Table 58 (116th ed. 1996); Note, Pennsylvania Supreme Court Rejects Substantive Review of Prenuptial Agreements -- Simeone v. Simeone (1991) 104 Harv. L.Rev. 1399; George, Can a Woman of the 90's Have it All? Or, is she once again faced with that age old question -- "What's a girl to do?" (1992) 8 J. Am. Acad. Matrim. Law 73, 76; Marston, Planning for Love: The Politics of Prenuptial Agreements (1997) 49 Stan. L.Rev. 887, 888, 891 [one report estimates that the number of premarital agreements tripled between 1978 and 1988 and has steadily increased ever since]; Counce, Cary v. Cary: Antenuptial Agreements - Waiving or Limiting Alimony in Tennessee (1997) 27 U. Mem. L.Rev. 1041, 1042; Graham, The Uniform Premarital Agreement Act and Modern Social Policy, supra, 28 Wake Forest L.Rev. at pp. 1054-1057.)

    By careful premarital planning and a willingness to mix realism with romance, the bride and groom can protect their existing assets, assume responsibility for their existing debts, characterize after-acquired property, allocate income earned (actively and passively) during the marriage, address income tax issues that will arise during marriage and in the event of dissolution or death, and cover general testamentary issues as well as those that may exist if there are children from prior marriages. (Osborne v. Osborne, supra, 428 N.E.2d at p. 813; Smith, The Unique Agreements: Premarital and Marital Agreements, Their Impact Upon Estate Planning, and Proposed Solutions to Problems Arising at Death (1991/1992) 28 Idaho L.Rev. 833, 836; Cameron, Hoffman & Ytterberg, Marital and Premarital Agreements (1987) 39 Baylor L.Rev. 1095, 1112-1121.) As the law is starting to recognize, premarital agreements may in fact encourage rather than discourage marriage. As more than one court has noted, society's current acceptance of cohabitation without marriage offers an attractive alternative to a wealthy man or woman who cannot marry without relinquishing the right to limit his or her spousal support obligation in the event of divorce. See footnote 14 This reasoning suggests that the result we reach today does in fact preserve rather than defeat the sanctity of marriage. (Brooks v. Brooks, supra, 733 P.2d at p. 1050; Gant v. Gant, supra, 329 S.E.2d at p. 113; Unander v. Unander, supra, 506 P.2d 719-721.)

    We do not suggest that everybody needs a premarital agreement, or that everybody who does have a premarital agreement needs to address the issue of support, only that those who choose to resolve their financial responsibilities before marriage ought to be able to do so, and to do so completely. For those who defer to the state, their rights and obligations will be determined by the courts if and when the marriage fails. For those who choose to control their own destiny to the extent permitted by law, there no longer exists any reason to per se prohibit spousal support waivers or limitations. (See Gant v. Gant, supra, 329 S.E.2d at p. 113 [the legal system must continue to encourage marriage even if that means approving prenuptial agreements with spousal support waivers that are not to judges' personal liking]; Parniawski v. Parniawski (Conn.Super. 1976) 359 A.2d 719, 721.)

    For the foregoing reasons, we reject as anachronistic the notion that premarital agreements encourage divorce and hold that our abandonment of divorce by fault requires abandonment of the prohibition against premarital spousal support waivers and limitations. Our Legislature recognized this possibility when it adopted the California Act to authorize premarital agreements on any subject that does not violate public policy (Fam. Code, § 1612, subd. (a)(7)). At the same time, the Legislature included the stringent enforcement provisions imposed by the Uniform Act (Fam. Code, § 1615) to restrict the ability of one spouse to take advantage of the other. We emphasize, however, that our holding is very limited, and it is this: Spousal support waivers and limitations contained in written premarital agreements are not contrary to public policy and are not per se unenforceable. In this case, the trial court concluded that the spousal support waiver was per se unenforceable. As a result, the court did not reach the question of enforceability, and the cause must be remanded for that purpose. (See fn. 9, ante.)
    The order is reversed and the cause is remanded to the trial court with directions to determine the enforceability of the spousal support waiver. The parties are to pay their own costs of appeal.


                        VOGEL (Miriam A.), J.

We concur:    SPENCER, P.J.    MASTERSON, J.

Footnote: 1 To avoid confusion between this Act and the subsequently enacted California version (Part B., post), we refer to this Act as the "Uniform Act" and the California version as the "California Act."

Footnote: 2 Subdivision (b) of section 3 of the Uniform Act provides that "[t]he right of a child to support may not be adversely affected by a premarital agreement."

Footnote: 3 As of this writing, the "better view" has been adopted by most states. Either by enactment of the Uniform Act or judicial fiat, 41 states and the District of Columbia now permit premarital waivers of spousal support: Alabama (Ex parte Walters (Ala. 1991) 580 So.2d 1352); Alaska (Brooks v. Brooks (Alaska 1987) 733 P.2d 1044 [dicta]); Arizona (Ariz.Rev.Stat. § 25-203 (1992); Williams v. Williams (Ariz.App. 1990) 801 P.2d 495, 497-499); Arkansas (A.C.A. § 9-11-403); Colorado (Newman v. Newman (Colo. 1982) 653 P.2d 728, 731-734); Connecticut (C.G.S.A. §§ 46b-36d); Delaware (13 Del.C. § 323); District of Columbia (D.C. Code 1981 § 30-143; Burtoff v. Burtoff (D.C.App. 1980) 418 A.2d 1085, 1088); Florida (Snedaker v. Snedaker (Fla.App. 1995) 660 So.2d 1070); Georgia (Scherer v. Scherer (Ga. 1982) 292 S.E.2d 662); Hawaii (HRS § 572-D-3; Lewis v. Lewis (Hawaii 1988) 748 P.2d 1362); Idaho (I.C. § 32-923); Illinois (750 ILCS 10/4; Warren v. Warren (Ill.App. 1988) 523 N.E.2d 680, 682-683); Indiana (I.C. 31-11-3-5); Kansas (K.S.A. § 23-804; Matlock v. Matlock (Kan. 1978) 576 P.2d 629, 633); Kentucky (Edwardson v. Edwardson (Ky. 1990) 798 S.W.2d 941; Louisiana (McAlpine v. McAlpine (La. 1996) 679 So.2d 85, 93; Maine (Me.Rev.Stat. tit. 19-A, § 604); Maryland (Frey v. Frey (Md. 1984) 471 A.2d 705); Massachusetts (Osborne v. Osborne (Mass. 1981) 428 N.E.2d 810, 816); Minnesota (Hill v. Hill (Minn.App. 1984) 356 N.W.2d 49, 55); Missouri (Gould v. Rafaeli (Mo.App. 1991) 822 S.W.2d 494); Montana (MCA § 40-2-605); Nebraska (Neb.Rev.St. § 42-1004); Nevada (N.R.S. § 123A.050; Buettner v. Buettner (Nev. 1973) 505 P.2d 600, 604); New Hampshire (MacFarlane v. Rich (N.H. 1989) 567 A.2d 585, 588); New Jersey (N.J.S.A. § 37:2-34); New York (NY Dom.Rel. § 236, subpart B, subd. 3; Gen. Obligations Law § 5-311; Panossian v. Panossian (N.Y.A.D. 1991) 172 A.D.2d 811); North Carolina (G.S. § 52B-4); North Dakota (NDCC § 14-03.1-03); Ohio (Gross v. Gross (Ohio 1984) 464 N.E.2d 500, 506); Oklahoma (Hudson v. Hudson (Okla. 1960) 350 P.2d 596); Oregon (O.R.S. § 108.710; Unander v. Unander (Or. 1973) 506 P.2d 719, 721); Pennsylvania (Simeone v. Simeone (Pa. 1990) 581 A.2d 162); Rhode Island (Gen. Laws 1956 § 15-17-3); South Carolina (Gilley v. Gilley (S.C. 1997) 488 S.E.2d 310, 312); South Dakota (S.D. Codified Laws §§ 25-2-18, 25-2-24 (1991)); Tennessee (Cary v. Cary (Tenn. 1996) 937 S.W.2d 777); Texas (Tex. Fam. Code § 4.003); Utah (U.C.A. 1953 § 30-8-4); Virginia (Va. Code 1950 § 20-150); West Virginia (Gant v. Gant (W.Va. 1985) 329 S.E.2d 106); and Wisconsin (Hengel v. Hengel (Wis.App. 1985) 365 N.W.2d 16). Only four states clearly prohibit prenuptial spousal support waivers: Iowa (Iowa Code § 596.5, subd. 2; In re Marriage of Spiegel (Iowa 1996) 553 N.W.2d 309, 319); New Mexico (N.M.S.A. 1978, § 40-3A-4); South Dakota (Connolly v. Connolly (S.D. 1978) 270 N.W.2d 44, 46); and Vermont (Stearns v. Stearns (Vt. 1894) 28 A. 875). In Michigan, the courts are divided. (Compare Scherba v. Scherba (Mich. 1954) 65 N.W.2d 758, 760, with Rinvelt v. Rinvelt (Mich.App. 1991) 475 N.W.2d 478.) Mississippi, Washington and Wyoming have not addressed the issue.

Footnote: 4 The California Act was originally adopted as former Civil Code section 5300 et seq., which was repealed in 1992 (with an effective date of January 1, 1994), at which time it was readopted as part of the new Family Code, specifically section 1600 et seq. (Estate of Gagnier (1993) 21 Cal.App.4th 124, 129, fn. 1.) As adopted in California, section 3 of the Uniform Act appeared in former Civil Code section 5312. It is now found in section 1612 of the Family Code. The California Act applies to all premarital agreements entered on or after January 1, 1986. (Fam. Code, § 1601.)

Footnote: 5 It also included a related provision to protect the public fisc. As proposed, former Civil Code section 5315, governing enforcement, would have included this language in subdivision (b): "If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility." (Sen. Bill No. 1143 (1985-1986 Reg. Sess.) Mar. 7, 1985.) This provision was deleted at the same time the reference to spousal support waivers was deleted from former Civil Code section 5312. (Assem. Amend. to Sen. Bill No. 1143 (1985-1986 Reg. Sess.) Aug. 28, 1985.)

Footnote: 6 Barham v. Barham, supra, 33 Cal.2d 416, is one of the most frequently cited cases on this point. Barham relies on Pereira v. Pereira, supra, 156 Cal. 1, which in turn relies on Seeley's Appeal (1888) 56 Conn. 202 [14 A. 291], where the court said: "'Inasmuch as the state rests upon the family and is vitally interested in the permanency of a marriage relation once established, it, for the promotion of public welfare, and of private morals as well, makes itself a party to every marriage contract entered into within its jurisdiction, in this sense, that it will not permit the dissolution thereof by the other party thereto.'" (Pereira v. Pereira, supra, 156 Cal. at p. 5.) Barham also relies on Whiting v. Whiting (1923) 62 Cal.App. 157: "Accordingly, a contract providing 'against liability for a contemplated wrong to be subsequently inflicted' by one of the spouses upon the other and liquidating 'such liability in advance,' was declared a 'menace to the marriage relation and should not be tolerated, and this irrespective of the time when the same might have been executed in reference to the time of marriage.'" (Barham v. Barham, supra, 33 Cal.2d at p. 428; see also Blackstone's Commentaries (1765), quoted in Siegel, The Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings, 1860-1930 (1994) 82 Geo. L.J. 2127 ["By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything . . . . Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either one of them acquire by the marriage"]; Graham, The Uniform Premarital Agreement Act and Modern Social Policy: The Enforceability of Premarital Agreements Regulating the Ongoing Marriage (1993) 28 Wake Forest L.Rev. 1037, 1041-1042 [noting that the origin of the husband's obligation to support his wife was the fiction that they were "one person in law"].)
Footnote: 7 Terminology changed along with the substantive law. "Divorce" became "dissolution of marriage." "Separate maintenance" became "legal separation." "Annulment" became "judgment of nullity of the marriage." Instead of an "action for divorce," we now have a "proceeding for dissolution." Instead of a "complaint" with a "plaintiff" and a "defendant," we now have a "petition" with a "petitioner" and a "respondent." In addition to the elimination of fault and the adoption of a rule of "irreconcilable differences," the residence requirements were reduced from one year to six months, the testimony of a corroborating witness is no longer required, evidence of acts of misconduct is inadmissible (unless custody is an issue), and so on. (11 Witkin, Summary of Cal. Law (1990) Husband and Wife, § 23, pp. 38-39; see generally Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath (1987) 56 U.Cin. L.Rev.1; Ellman, The Theory of Alimony (1989) 77 Cal. L.Rev.1.)

Footnote: 8 "Equality in the division of the property is most important if acrimony is to be reduced or eliminated. Much bitterness was fomented under the old law because the parties had something economic to gain by proving the other at fault, i.e., a greater share of the community property. The motivation to fix blame should be substantially ameliorated under the new law." (Report of the Judiciary Committee, quoted in 11 Witkin, Summary of Cal. Law, supra, Community Property, § 161, p. 568.) Of course, the parties may agree to an unequal division. (In re Marriage of Cream (1993) 13 Cal.App.4th 81, 87.)

Footnote: 9 Under Family Code section 1615, a premarital agreement is not enforceable if the party against whom enforcement is sought proves that he or she did not execute the agreement or that the agreement was unconscionable when executed and that, before execution, that party was not provided reasonable disclosure of the property or financial obligations of the other party, that party did not voluntarily and expressly waive, in writing, any right to disclosure beyond that which was provided, and that party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. An issue of unconscionability of a premarital agreement is decided by the court as a matter of law. In this regard, we note that our decision in this case suggests a need for legislative reexamination of the enforcement issues -- those that are covered by Family Code section 1615 and those that are not. (See fn. 5, ante.) Until the Legislature acts, the courts will have to decide enforcement issues in conformance with the rules that are expressed in Family Code section 1615 and the policies underlying both the Uniform Act and the California Act. (See Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶¶ 9:185.5-9:185.6 [noting the absence of any reported California case involving an unconscionability claim vis-à-vis a premarital agreement and quoting the standard under the Uniform Act, to the effect that, "in determining whether a premarital agreement is unconscionable, courts 'may look to the economic circumstances of the parties resulting from the agreement, and any other relevant evidence . . .'"]; see also Lewis v. Lewis, supra, 748 P.2d 1362.)

Footnote: 10 We note with some irony that the Tennessee Supreme Court reads Dawley as part of "a line of authority representing the majority rule [that] has emerged upholding the validity of provisions in antenuptial agreements which waive or limit alimony." (Cary v. Cary, supra, 937 S.W.2d at p. 779, including fn. 4.)

Footnote: 11 There is one recent case that parrots the old rule (that premarital spousal support waivers are unenforceable because they are against public policy) without analysis, presumably because nobody questioned the continuing validity of the rule. The issue in In re Marriage of Fell (1997) 55 Cal.App.4th 1058, was the right of the parties to a marital dissolution to waive the mandatory exchange of final declarations disclosing their assets and liabilities. (Id. at p. 1060.) In that context, Division Six of our court cited In re Marriage of Higgason, supra, 10 Cal.3d 476, and In re Marriage of Dawley, supra, 17 Cal.3d 342, for the proposition that anyone may waive the advantage of a law intended solely for his benefit, but a law established for a public reason cannot be contravened by a private agreement. (In re Marriage of Fell, supra, 55 Cal.App.4th at p. 1063.) Fell did not consider the effect of the California Act and other legislative changes on the continuing validity of Higgason and Dawley. As a result, Fell does not affect our decision in this case. (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902 [cases are not authority for propositions not considered].)

Footnote: 12 Subdivisions (a)(1) and (a)(2) of Family Code section 1612 permit the parties to a premarital agreement to contract with regard to "[t]he rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located" and with regard to the right to the use of that property.

Footnote: 13 In Osborne v. Osborne, supra, 428 N.E.2d at pages 815-816, the court concluded that "significant changes in public policy during the last decade in the area of domestic relations warrant a tolerant approach to the use of antenuptial contracts as vehicles for settling the property rights of the parties in the event of divorce. In recent years the Legislature has abolished the doctrine of recrimination and recognized irretrievable breakdown as a ground for divorce. . . . The Legislature itself has thus removed significant obstacles to unhappy couples wishing to obtain a divorce. There is no reason not to allow persons about to enter into a marriage the freedom to settle their rights in the event their marriage should prove unsuccessful . . . . We therefore hold that an antenuptial contract settling the alimony or property rights of the parties upon divorce is not per se against public policy and may be specifically enforced." In Frey v. Frey, supra, 471 A.2d at pages 709-710, the court held that public policy had changed (in the same ways it has changed here) and abandoned a per se rule prohibiting premarital spousal support waivers: "[L]ittle empirical evidence supports the view that such agreements invite dispute, or encourage separation. . . . [¶] Although the state has an interest in protecting the institution of marriage, . . . '[w]e 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.'. . . [¶] . . . Where public policy recognizes that a marriage may need to be dissolved without the fault of either party, much of the rationale behind the old public policy view fades." (See also Williams v. Williams, supra, 801 P.2d at p. 497 [adoption of a no-fault system of divorce eliminates the public policy prohibition against premarital spousal support waivers]; Hamilton v. Hamilton (Pa.Super.1991) 591 A.2d 720, 722 [society has advanced to the point where women are no longer regarded as the "weaker" party in marriage, or in society generally, and the stereotype that women serve as homemakers while men work as breadwinners is no longer viable; quite often, both spouses are income earners and there can be no presumption that women are uninformed, uneducated, or readily subjected to unfair advantage in marital agreements]; Cary v. Cary, supra, 937 S.W.2d at pp. 779-780.)
Footnote: 14 In Marvin v. Marvin (1976) 18 Cal.3d 660, 665, our Supreme Court held that the Family Law Act does not govern the distribution of property rights acquired during a nonmarital relationship, and that courts should enforce express contracts between nonmarital partners (except to the extent the contract is explicitly founded on the consideration of meretricious sexual services). As a result of the Marvin decision, it is generally recognized that nonmarital partners may enter into contracts ordering their economic affairs any way they choose. (See Hogoboom & King, Cal. Practice Guide, Family Law, supra, ¶ 20.60 et seq.)