Family Law Quarterly
Volume 46, No. 3 (Fall 2012)
Symposium on Uniform Premarital and Marital Agreements
Table of Contents
Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.
Linda D. Elrod
A New Uniform Law for Premarital and Marital Agreements
Barbara A. Atwood & Brian H. Bix
This article introduces the new Uniform Premarital and Marital Agreements Act, approved by the Uniform Law Commission in July 2012. Coauthored by the Drafting Committee Chair and the Reporter for the Act, the article explains the impetus for the drafting project, the policy debates that the project engendered, and the ongoing tension between practical enactability and ideal enforcement standards. In response to the widespread criticism of the existing Uniform Premarital Agreement Act, the new Act significantly strengthens the requirements of procedural fairness to ensure voluntary and informed consent. In addition, the Act covers marital agreements—agreements entered into between spouses intending to remain married—and thus provides a needed legal framework in an area of considerable uncertainty. In discussing the intended application of the Act's key provisions, the article highlights the ways in which it marks a significant reform for the law of marital contracting.
Uniform Premarital and Marital Agreements Act
The Uniform Premarital and Marital Agreements Act with Reporter’s Comments, as approved by the Uniform Law Commission in July 2012, is reprinted here with permission.
Would Enactment of the Uniform Premarital and Marital Agreements Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?
J. Thomas Oldham
This article summarizes the provisions of the Uniform Premarital and Marital Agreements Act, promulgated by the Uniform Law Commission in the summer of 2012. It compares these provisions to the Uniform Premarital Agreement Act, the rules currently applicable in states that did not adopt the UPAA, and the approach applied in other countries to premarital agreements contemplating divorce. The article summarizes the new requirement in the UPMAA that, to be enforceable, each party must have had "access to independent counsel," and discusses how courts might construe such a provision.
Book Review: The Perils and Pitfalls of Marital Agreements in Multiple Legal Systems
Robert E. Rains
Marital Agreements and Private Autonomy in Comparative Perspective (Jens M. Scherpe, ed.)
The author reviews Marital Agreements and Private Autonomy in Comparative Perspective, Jens M. Scherpe, editor. The book is a British-academy funded research project that arose out of a 2009 conference in Cambridge, England. The project examines fourteen nations’ (mostly European) approaches to the question of how and to what extent couples may opt out of default systems for property ownership and distribution, as well as different forms of post-separation maintenance. The reviewer concludes, as editor Scherpe does, that "cast-iron" agreements do not really exist in any of the jurisdictions examined. The reviewer finds the book’s analysis thorough and fascinating. He believes that this book is an excellent first step, but that researchers must now move on to analyze results in South and Central America, Africa, and Asia.
2012 Schwab Essay Contest Winners
You Say Adoption, I Say Objection: Why the Word War Over Embryo Disposition Is More Than Just Semantics
Jessica R. Hoffman
This article focuses on the disposition of excess embryos that result from Assisted Reproductive Technologies. Part I examines the patchwork of existing laws created in reaction to disputes concerning embryo disposition. Part II discusses the two leading models proposed to govern embryo disposition and which body of law should govern. Part III suggests taking the best and most applicable aspects of both models to create a system of rights and repeatable procedures to govern embryo disposition today and in the future as new medical advancements occur.
Hello Mommy and Daddy, How in the World Did They Let You Become My Parents?
This article examines current flaws in the international adoption process. The author explains the current process parents typically encounter when adopting internationally, and describes the existing body of law that governs international adoptions. She explores the screening criteria used to select parents for adoption, along with the post-placement reporting requirements of countries that have agreed to abide by the Hague Adoption Convention. She compares the practices of countries that have adopted the Convention with those that have not, and asks whether international law has created safer adoptions and better screening of prospective parents. She concludes with four suggested changes to international law to better ensure uniform standards in selecting prospective adoptive parents and monitoring a child’s post-adoption well being.
A Comparison of Japanese and Moroccan Approaches in Adopting the Hague Convention on the Civil Aspects of International Child Abduction
This article focuses on the 1980 Hague Convention on the Civil Aspects of International Child Abduction and analyzes Japan's internal legal structure and efforts made to join the Hague Convention. The article then compares Japan to Morocco, examining the reforms Morocco made to its family law system in order to join the Hague Abduction Convention. The article concludes with several recommendations to help Japan make reforms and transition to become a signatory of the Hague Abduction Convention.
Publication Date: January 2013