Georgia law’s treatment of prenuptial agreements has changed significantly in the past few decades from rejecting them outright as violating public policy discouraging divorce, to accepting them as a suspicious reality on the divorce landscape, to dealing with them as a special kind of contract. Overall, legal role of prenuptial agreements and the applicable law used in Alpharetta jurisdictions to determine their enforceability have changed from public policy considerations to more ordinary contract law analysis. These changes have coincided with an explosion of prenups in regular usage among those marrying in Georgia.
In 1982, the Georgia Supreme Court ruled that courts had the broad responsibility to analyze the enforceability of pre-marital contracts according to whether they are fraudulent or “unconscionable,” and whether the factual circumstances at the time of enforcement have changed from the time of execution (i.e., whether the signers could foresee the course and events of their marriage ahead of time). However, since then, the courts have determined that the “unconscionable” and foreseeable tests are too broad and ill-defined to rely on in a court of law. Today, it is mostly the free and full disclosure of financial information between the parties that sets the bar for a prenuptial to be enforceable. To learn about the role of prenuptial agreements in religious divorces in Alpharetta, get in touch with one of our team members.
Clauses built into prenuptial agreements that promise or trigger divorce after a certain period of time or under certain circumstances are not upheld by Alpharetta law because they violate public policy against encouraging marital dissolution. Some religious marital contracts, such as the Islamic nikah or the Jewish ketubah, do sometimes include such clauses, but they cannot be enforced civilly.
Prenups for religious couples can be very useful if written to provide the woman with the permission to divorce under certain circumstances. One such instance is the Jewish Lieberman Clause, added to the ketubah in the 1950s. This essentially demands the couple face arbitration in the case of a “limping marriage” (i.e., a civil divorce after which the husband still refuses to grant the wife a religious divorce).
The Lieberman Clause requires both the husband and wife to stand before a rabbinic court, which usually directs the husband to agree to finalize the religious divorce.
Another usage of prenuptial agreements is the Islamic practice of tafwid. Here, the husband essentially delegates the right to his wife to pronounce talaq in writing within the marriage contract. This may be stated unconditionally or conditionally in case the husband performs certain acts (such as taking a second wife). Women have historically included various such provisions in their marriage contracts, but it is becoming more widely known and practiced in modern times with the intention of reducing the imbalance of power.
In Catholicism, any hint that the marriage was predicated upon a contract invalidates it. Therefore, Catholic couples who are interested in defining separate property or preserving certain rights in the event of a divorce are better off drafting “notes” of indebtedness or other non-marital contractual obligations that do not contain any conditions for the existence of the marriage or predicate any conditions for their divorce.
If you’re uncertain about whether a prenup would be enforceable in the context of a religious divorce, get in touch with our team. We understand the varying religious equivalents to a pre-marital contract and can advise you on whether drafting one would be a good idea in your case. Call our firm to learn more about the role of prenuptial agreements in religious divorces in Alpharetta.