Hastings Journal on Gender and the Law


An ugly reality faced by many couples is the prospect of an impending divorce. Regardless of this fact, there is a longstanding opposition to the creation of marital contracts that is routed in history and enforced by popular opinion. This Article contends that marriage contracts drafted during the marriage, known as postnuptial contracts, can be effective in providing cleaner ways for marriages to dissolve and for saving marriages that are on the brink of collapse. These contracts allow couples to address marital disagreements that were unanticipated prior to the marriage. Unlike prenuptial contracts, however, postnuptial contracts are difficult to enforce and sometimes not legally binding. So while postnuptial contracts might be able to remedy the severity of divorce haggling, those benefits are, at this stage, primarily speculative. This Article argues that the Australian legal model-which provides a window to the benefits of legally enforceable postnuptial agreements-deserves careful attention as a model permitting couples to take advantage of the numerous rewards of postnuptial agreements. A national standard for the adjudication of postnuptial contracts in the United States would increase the likelihood that these postnuptial contracts would be enforceable and would encourage married couples to enter into them.