Book contents
- Frontmatter
- Contents
- Acknowledgments
- Foreword, by Mary Ann Glendon
- List of Contributors
- Introduction
- PART ONE FAULT
- PART TWO CUSTODY
- PART THREE CHILD SUPPORT
- PART FOUR PROPERTY DIVISION
- PART FIVE SPOUSAL SUPPORT
- PART SIX DOMESTIC PARTNERSHIP
- PART SEVEN AGREEMENTS
- 18 The PRINCIPLES and Canada's “Beyond Conjugality” Report: The Move towards Abolition of State Marriage Laws
- 19 The ALI PRINCIPLES and Agreements: Seeking a Balance between Status and Contract
- 20 The PRINCIPLES on Agreements: “Fairness” and International Human Rights Law
- PART EIGHT JUDICIAL AND LEGISLATIVE PERSPECTIVES
- PART NINE INTERNATIONAL REFLECTIONS
- Afterword: Elite Principles: The ALI Proposals and the Politics of Law Reform, by Carl E. Schneider
- Index
19 - The ALI PRINCIPLES and Agreements: Seeking a Balance between Status and Contract
Published online by Cambridge University Press: 25 January 2010
- Frontmatter
- Contents
- Acknowledgments
- Foreword, by Mary Ann Glendon
- List of Contributors
- Introduction
- PART ONE FAULT
- PART TWO CUSTODY
- PART THREE CHILD SUPPORT
- PART FOUR PROPERTY DIVISION
- PART FIVE SPOUSAL SUPPORT
- PART SIX DOMESTIC PARTNERSHIP
- PART SEVEN AGREEMENTS
- 18 The PRINCIPLES and Canada's “Beyond Conjugality” Report: The Move towards Abolition of State Marriage Laws
- 19 The ALI PRINCIPLES and Agreements: Seeking a Balance between Status and Contract
- 20 The PRINCIPLES on Agreements: “Fairness” and International Human Rights Law
- PART EIGHT JUDICIAL AND LEGISLATIVE PERSPECTIVES
- PART NINE INTERNATIONAL REFLECTIONS
- Afterword: Elite Principles: The ALI Proposals and the Politics of Law Reform, by Carl E. Schneider
- Index
Summary
This chapter analyzes Chapter 7 of the Principles, which deals with agreements. It contrasts the ALI's treatment of premarital, marital, and separation agreements with both current doctrine and arguments for respecting greater private ordering regarding marriage. While largely agreeing with the ALI's approach, this chapter urges an approach somewhat more respectful of party choice and more sensitive to the variety of marriage-related agreements.
The current treatment of premarital, marital, and separation agreements reflects a view that, in a world where entrance into marriage and exit from it is largely within the control of the partners, it seems consistent to allow the partners some choice regarding the nature of the marriage they decide to enter, or not to exit. Part I of this chapter deals with premarital agreements; Part II with marital agreements; and Part III with separation agreements. Each part begins with an overview of current law, followed by a summary of the Principles' position, and an evaluation of that position.
Premarital Agreements
Overview and Current Doctrine
Premarital agreements, also called “antenuptial” and “prenuptial” agreements, are entered into when marriage is imminent, to settle, create, or modify certain rights between the parties during their marriage, upon the death of one of the partners, or upon divorce. The following discussion focuses on premarital agreements meant to modify the rights of the spouses upon divorce.
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- Reconceiving the FamilyCritique on the American Law Institute's Principles of the Law of Family Dissolution, pp. 372 - 391Publisher: Cambridge University PressPrint publication year: 2006
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