To Have and to Hold, for Richer or Richer: Premarital Agreements in the Comparative Context

Abstract

Although England and the United States have similar understandings of such agreements,12 the meaning and consequences of premarital agreements in continental Europe markedly differ from the Anglo-American common law tradition, heightening the opportunity for a comparative study. However, while the European approach inherently offers significant insight into the purpose, limits, and effects of premarital agreements, this approach is not as well-known-even to many Europeans- as the American approach, made so famous through Hollywood examples. This Article therefore endeavors to consider and develop the notion of the premarital agreement in the comparative law context, addressing some of the universal issues surrounding premarital agreements, as well as the particular nuances of certain regulatory frameworks governing this type of agreement. Part I begins by exploring premarital agreements in American law, while Part II reviews the European approach to such agreements, focusing on Poland's representative approach, but also considering the approaches of France, Germany, and Switzerland. Part III draws lessons from a comparison of these various approaches, concluding that much of the distinction between American and European law on premarital agreements stems from the differing limits placed on the prospective spouses' freedom of contract. Part III also considers the desirable level of freedom of contract, the ideal characteristics of the regulatory framework of premarital agreements, and, finally, the popularity of such agreements.