And How that Benefits Anyone Who Has or Will Enter into a Prenuptial Agreement
I learned that the quote attributed to Otto von Bismarck that “laws are like sausages, it is better not to see them being made” is not true, at least at the Georgia General Assembly. I had the opportunity to testify before the House Judiciary subcommittee on January 22, 2016, regarding a proposed amendment to statutory provisions about prenuptial agreements. The proposed amendment uses the term “antenuptial agreement” which is interchangeable with prenuptial agreement.
The changes proposed in House Bill 405 are intended to modernize terminology and repeal arcane concepts that date back to prior to Georgia’s Married Women’s Property Act of 1866. Before the passage of that Act, a married woman could not own property. Upon her marriage, all of her property became her husband’s property. In the 19th century, women were frequently widowed, inherited property from their husband, and, sometimes from their fathers, and subsequently remarried. To avoid the rules of coverture, the betrothed would often enter an agreement called “marriage articles”. The marriage articles would allow the woman to keep her property and prevent it from being available to pay the debts of her husband, who were, occasionally, “vagabond gamblers.” Of course, even if the married woman maintained her property by use of marriage articles, the property still had to be held by a trustee.
After the passage of the Married Women’s Property Act, marriage articles were no longer necessary. Nonetheless, nobody in the Georgia General Assembly paid any attention to the statute that defined marriage articles, and the statute was carried forward from the Code of 1863 all the way to our current code.
The Family Law Section of the State Bar of Georgia, which has a very active legislative committee, decided to focus on the statute after becoming concerned about the litigation that arose when someone sought to enforce a prenuptial agreement. Georgia had drawn a fine distinction in its common law between antenuptial agreements made in contemplation of marriage, which had always been recognized, and antenuptial agreements made in contemplation of divorce, which were not valid until 1982. A contract made in contemplation of marriage had to be attested to by two witnesses, but a contract made in contemplation of divorce had no attestation requirements. That led to our appellate court’s having to determine whether the prenuptial agreement was made in contemplation of marriage or divorce. Since all marriages will end in either death or divorce, you can begin to understand why some of our Supreme Court Justices felt that the distinction was purely semantic.
To eliminate litigation that arose with some regularity about whether an agreement was enforceable or unenforceable because of the number of witness signatures that appeared on the document, the State Bar of Georgia proposed that the statutes be revised so that all antenuptial agreements be attested by at least two witnesses, one of whom must be a notary public. Upon reviewing the proposed amendments, however, I noticed that although the term “marriage articles” was eliminated and substituted with the term “antenuptial agreement”, the definition of antenuptial agreement remained essentially the same as that of marriage articles. I therefore contacted the members of the legislative committee and one of the sponsors of the bill, Representative Regina Quick, who is also the current President of the State Bar’s Family Law Section. Regina and I met at the 11th hour, discussed my thoughts and concerns, and the proposed amendment was revised in accordance with my suggestions. Less than 24-hours later, HB 405 was before the House Judiciary Subcommittee. It passed and is now on its way to the full committee, and, hopefully, ultimately to the floor for a vote to become law.
I not only learned a great deal about the proper drafting of a prenuptial agreement as part of my research, but also learned more about the legislative process. I was very excited to have been a small part of the change.