Post-nuptial agreements are written contracts between spouses prior to or during a marriage that modify or continue the legal obligations of each spouse to the other. As archaic and simple this definition sounds, crafting agreements that account for the individual wishes and life circumstances of both parties often require legal intervention. While the development of post-nuptial agreement ohio in the United States is a relatively new concept (compared to the history of marriage itself), the notion that married spouses might settle legal matters through mutual agreement has cultural precedent. Whether in the context of personal property, financial distribution or familial preservation, heritage and culture can help explain the desire and reasoning for drafting a post-nuptial agreement.
On the Heritage Educational Portal we often talk about culture and education and how events influence or contribute to culture. One topic in particular where culture and education intersect is with regard to post-nuptial agreements. The question we ask ourselves is how do areas of culture and/or education impact the inclination to draft a post-nuptial agreement and what areas should be considered when constructing such an agreement.
In Ohio, there is not a statutory authority for the formation of post-nuptial process. However, the Ohio courts consider such agreements to be valid documents at law as long as they are executed and signed in front of a notary public. In the case of In Re Marriage of McClintock (1996) Ohio App. LEXIS 5098, the court determined that an oral post-nuptial agreement conveying property interests is enforceable if, first, general contract principles are met and, second, the applicable statute of frauds is satisfied.
The history of marital agreements can be traced back to the Roman Empire and the principle of „concubinatus” which allowed wealthier men to secure sexual relations with lower class women without the ceremonial process of marriage. In the seventh century, the church began to condemn such relationships and therefore the practice of post-nuptial agreements were created to legally bind married parties together. In modern developed countries, post-nuptial agreements are more likely to be used to settle property rights and familial issues than to secure sexual relations.
The role of marital agreements also varies among different cultures. For example, in many African cultures, customary law regulates marriage and property possession. In these societies, one will often see the dowry system still upheld and practiced where the husband’s family pays a bride price or dowry to the wife’s family in order to settle property rights.
In Middle Eastern culture, sexual relations outside of marriage are considered basic criminal offenses against society’s well being as they encourage promiscuity and undermine family structure of society is comprised of. As a result, we see frequent use of post-nuptial agreements as a way to recognize a relationship without the expectation of sex. Eventually, these relationships dissolve; separating legally is a only way to avoid the social stigma around separation from their agreed contract.
Traditionally in Eastern Asian culture, marriage was often seen as a joint enterprise rather than a union of love. This view implied that the husband’s role was to acquire financial security for the family, while the wife cared for the household and children. Post-nuptial agreements are prevalent in China, largely because men are traditionally expected to acquire wealth and status, while women are not permitted to accrue wealth for themselves. This leads to a socially acquired practice of not distributing wealth, as well as protecting wealth.
The material benefits of post-nuptial agreements seem more harsh in North American. Actions such as separation and divorce are expected of relationships that have seen their day, and as such, the contractual agreement is interpreted as a means to obtain ease of separation. Among indigenous people of North America, disparate marriage practices can be found that typical environments, such as custom and ceremony. In some cases, fathers arrange marriages for their daughters to unify tribes and create peace. Marriage serves as a tool for nation building that involves collective feminization and patronage. Contracts are not involved.
The use of post-nuptial agreements in the U.S. is on the rise. Benefits include the maintenance of harmony and civility in separation or divorce, facilitation of long-term planning, financial optimization of hidden assets, and protection from personal liability. Studies also show that divorce proceedings can be managed privately with no need for judges and attorneys and less tendency for court intervention.
The process of creating a post-nuptial agreement in Ohio begins with the proposal of the agreement to the other party. After a period of time, once both parties agree to the contract, it is drafted. To have a proper post-nuptial agreement, specific standards must be met. These include offering full disclosure of all material facts, independent counsel for both parties, and the proposal of objectives that are consistent with state law. Once the agreement has been drafted, both parties must sign it in front of a Notary Public.
Although the benefits of post-nuptial agreements are clear, the perception of post-nuptial agreements is generally negative. When asked to participate in a post-nuptial agreement, parties often feel slighted or unsure about the intentions of their partner. Societal expectations are standardized enough to make it difficult to rationalize deviation from the norm, even if their peers do so with frequency. Without the ability or inclination to draw rational judgments about the purpose of a post-nuptial agreement, many choose to avoid them altogether.
However, as North America diversifies, the need for non-standardized approaches to the legal processing of separation and divorce and related post-nuptial agreements is becoming ever more prevalent. One avenue is the validation of post-nuptial agreements as a tool to draft a socially acceptable separation that acknowledges the differences in culture and personal experience.
For more information on marriage laws and agreements, you can visit Wikipedia’s page on marriage law.