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The Marriage Provision

15 January, 2016 - 09:33

The rule: if any part of the marriage or the promise to marry consists also of a promise to exchange some consideration, the Statute of Frauds requires that part to be evidenced by some writing. 1 Mutual promises to marry are not within the rule. John and Sally exchange promises to marry; the promise would not be unenforceable for failure to be evidenced by some writing. (Of course courts are very unlikely to force anybody to keep a promise to marry; the point is, the Statute of Frauds doesn’t apply). But if Sally understands John to say, “If you marry me, I will deed to you my property in the Catskill Mountains,” the part about the property would need to be evidenced by some writing to be enforced over John’s denial. The Statute of Frauds governs such promises regardless of who makes them. Suppose John’s father had said, “If you marry Sally and settle down, I will give you $1 million,” and John agrees and marries Sally. The father’s promise is not enforceable unless written, if he denies it.

Sometimes couples—especially rich people like movie stars—execute written property settlement agreements to satisfy the statute, stipulating how their assets will be treated upon marriage or upon divorce or death. If done before marriage, they are called prenuptial (premarital) agreements; if after marriage, postnuptial (after marriage) agreements (“prenupts” and “postnupts” in lawyer lingo).

The exception: there is no “named” exception here, but courts are free to make equitable adjustments of property of the marriage to avoid an injustice.

The factors to be considered in the division of the marital estate are set forth at [Citation], which states, inter alia [among other things], that the court shall finally and equitably apportion the property of the parties, however and whenever acquired. The statute vests wide discretion in the district court. [Citation]. The court is free to adopt any reasonable valuation of marital property which is supported by the record. 2