The rumor that Tom Cruise and Katie Holmes signed a five-year marriage contract prompted a New York Time’s article on the idea of 20-year renewable marriage contracts as a way of overhauling marriage in our society. The idea of short-term, renewable marriage contracts can be appealing, but would such agreements be enforceable under California law? The hitch may be in California law’s abhorrence of anything that promotes divorce.
A big issue for renewable marriage contracts under California law is whether these types of agreements would be “promotive of divorce,” which is forbidden for California premarital agreements.
A key early case on this is Marriage of Dawley (1976) 17 C3d 342, in which the California Supreme Court noted that agreements are
void only insofar as the terms of the agreement itself promote the dissolution of the marriage. The test of the validity of the contract thus does not turn on the subjective contemplation of the parties — a standard which would make it impossible to rely on any antenuptial agreement — but upon the objective language of the contract itself.
Contract language providing for the end of the marriage after a set period of time might be just the “objective language” that would void the contract.
If the contract went further and described the allocation of property at the end of the marital contract period, it would be even more problematic under California law. Cases have long held that an agreement promotes divorce if it provides for transfer of substantial value only in the event of dissolution. See, e.g., Marriage of Dajani (1988) 204 CA3d 1387, 251 CR 871 (Jordanian dowry agreement that provided payment to wife in event of dissolution); Marriage of Noghrey (1985) 169 CA3d 326, 215 CR 153 (Jewish “kethuba” that provided that wife would receive house and minimum of $500,000 in event of dissolution).
So, it appears that drafting a renewable marital contract for yourself or your client might be a waste of time. Better to put that time into making a successful marriage—or at least an enforceable premarital agreement.
For everything you need to know about drafting premarital agreements, turn to CEB’s California Marital Settlement and Other Family Law Agreements, chap 17.