A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial
contract which regulates the matrimonial property system of their marriage.
Where in the civilian context the notion of revocability was, in a sense, to prevent fraud on the surviving spouse and provide him or her with the ability to be better provided for under the antenuptial
agreement, in the English context the notion of revocability--or rather the absence thereof after the death of the first to die--was to prevent fraud in another sense.
A traditional antenuptial
agreement segregates the assets owned by the spouse seeking the agreement and declares that they would belong to the owning spouse after a divorce.
In this respect, the commissioners diverged not only from the common law of antenuptial
agreements but also from general contract principles.
54) See Dolgin, supra note 49, at 1560-61 (noting, as examples, the courts' recognition and enforcement of antenuptial
agreements in contemplation of divorce, and permission of no-fault divorce).
2d DCA 1996) (applying secular contract principles to the parties' sadaq and holding that the religious antenuptial
agreement was valid and enforceable where there was sufficient consideration and a proverbial meeting of the minds).
2d 586, 587 (Iowa 1973) (declaring antenuptial
agreements prohibiting alimony void and contrary to public policy); Duncan v.
For example, the Supreme Court of Ohio has stated: "Our research has disclosed that it is a common practice to present antenuptial
agreements at the eleventh hour before the wedding ceremony.
In less than thirty years state governments swerved from almost unanimously rejecting antenuptial
contracts dividing marital property to almost unanimously enforcing them.
agreements, also commonly called prenuptial agreements (prenups), are no longer only for the rich and famous.
1983), which involved an antenuptial
agreement, the Florida Third District Court of Appeal acknowledged that a general waiver of "all rights"
22) The Posner court recognized that as divorce became an easier, and thus more popular, option for resolving marital strife, the public-policy concerns regarding antenuptial
agreements had to adjust to a growing likelihood that marriage would end in divorce.