Jeremy
D. Morley
Clients sometimes propose all kinds of provisions
for prenuptial agreements that are intended to control their beloved’s future
activities. These so-called “lifestyle” terms may state that they’ll have some
sex, lots of sex, no sex or kinky sex. They might give a “bonus” for losing
weight, staying faithful, or being nice to a mother-in-law or they could include
a penalty for adultery, or for not doing the dishes.
Such terms in U.S. prenuptial agreements might very
well not be upheld. In prenups for international people they might also create
danger.
Merely by way of example, lifestyle provisions are
probably invalid in Australia, in most but perhaps not all Canadian provinces,
in New Zealand, and probably in the civil countries of Europe and South
America.
And in international prenuptial agreement situations
it is not merely a matter of ensuring that a chosen law would likely uphold
such a provision. These issues are generally considered to be matters of public
policy, such that even if a lifestyle clause could pass muster under the law
that the parties choose to govern their agreement, it would be necessary to
consider whether the public policy of the forum state would be violated by such
a term.
Lifestyle clauses must always be accompanied by provisions
that the invalidity of one term should not invalidate the entire agreement.
A danger that arises from a lifestyle clause is that
it might be indicative of extreme one-sidedness, and that it would therefore
provide substantial support for a subsequent claim that the agreement is unfair
or unconscionable or was involuntarily entered into.
The place where lifestyle clauses seem to be most
sought-after is California, where movie stars want control. However California
has clearly ruled that clauses that penalize a spouse’s drug-taking or sexual
infidelity will not be enforced.
When parties are contemplating a prenuptial
agreement that might need to be enforced in foreign jurisdictions, lifestyle
terms should not be included unless their potential reception in such
jurisdictions is first carefully researched, and the impact of a provision that
the balance of an agreement will survive the invalidity of one term is also
considered.
All too often the international enforceability of
prenuptial agreements is not adequately considered by clients and family
lawyers.