Written by attorney Merlinus Goodman Monroe

Antenuptial Agreements in Georgia (in brief)

Often in modern society, it seems a truism to the layperson that antenuptial and post-nuptial agreements, termed "prenups" are a given. However, that isn't necessarily the case, and Georgia has created special rules for the use of an agreement or contract in contemplation of marriage.

The basic statutory guideline for the validity of an antenuptial agreement is found in the Official Code of Georgia, Section 19-3-60. Since the idea of a contract for marriage is viewed with suspicion, either for having a potentially "immoral" purpose or as a tool for fraud to deceive creditors, the law requires that it be plainly stated as valid and permitted. That section states that "[m]arriage is a valuable consideration; and a spouse stands, as to property of the other spouse settled upon a spouse by marriage contract, as do other purchasers for value, provided that by the contract a spouse shall not incapacitate himself from paying his existing just debts."

The idea of "marriage articles" as a simple contractual tool should be distinguished from an antenuptial agreement, since a contract that needs nothing else to effect it and just happens to be made between spouses would be reliant only on the usual principles of contract interpretation. Section 19-3-62 clarifies this:

"(a) As used in this article, the term "marriage articles" means any antenuptial agreement between the parties to a marriage contemplating a future settlement upon one spouse. Marriage articles, whether by parol or in writing, may be executed and enforced by a court of equity at the instance of the spouse at any time during the life of the other spouse, so long as the rights of third persons, purchasers, or creditors, in good faith and without notice, are not affected thereby.

(b) An agreement perfect in itself which needs no future conveyance to effect its purposes is an executed contract and does not come under the definition of marriage articles."

The actual formalities that are needed to accompany a valid antenuptial agreement are established in Code Section 19-3-63, and the requirements are simple because it expressly states that the formalities are to be liberally construed. Basically, the agreement MUST be in writing, and it MUST be attested to by two witnesses. The Code Section specifically reads:

Every marriage contract in writing, made in contemplation of marriage, shall be liberally construed to carry into effect the intention of the parties and no want of form or technical expression shall invalidate the same. The contract must be attested by at least two witnesses.

The liberal construction that should be used on antenuptial agreements can be taken too far. In the 2006 case of Chubbock v. Lake, 281 Ga. 218, 635 S.E.2d 764, the failure of the proponent of the antenuptial agreement to have two witnesses was fatal to the document. That case follows:

Bruce Fielding Morriss, Daniel Shim,Atlanta, for Appellant.

Rosemary Smith Armstrong,Atlanta, for Appellee.

BENHAM, Justice.

Appellant Pamela Chubbuck (Wife) and appelleeThomasRichardLake(Husband) executed a premarital agreement on July 9, 2001, married five days later, separated three months thereafter, and obtained a judgment and decree of divorce in July 2003 following a jury trial. The judgment incorporating the jury verdict awarded the marital home and its contents to Wife and required her to pay Husband 41,000. We granted Wife's application for discretionary review of the divorce judgment in accordance with this Court's Family Law Pilot Project pursuant to which this Court grants all non-frivolous applications seeking discretionary appeal from a final judgment and decree of divorce. See

Page 765

Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003).

Prior to trial, the trial court ruled the parties' premarital agreement was unenforceable because it did not meet the statutory requirement that it be witnessed by two persons, having been signed only by the parties and the notary public before whom they executed the document. 1 The trial court ruled the unenforceable agreement could not be introduced into evidence and the jury would be instructed there was no enforceable agreement. Over Wife's objection, the trial court permitted testimony concerning the existence and contents of the premarital agreement, with the understanding that it would not be referred to as a premarital agreement but as a document the parties had executed prior to their marriage. Pursuant to the ruling, Husband and Wife testified that the premarital document provided for Husband to receive a minimum of 41,000 should the parties divorce. No instruction was given the jury concerning the unenforceability of the document and when the jury inquired during deliberations whether the jury could use the parties' testimony about the written document's provision of 41,000 to Husband upon divorce, the trial court responded affirmatively.

[281 Ga. 219] 1. The main issue on appeal is whether the trial court erred when it allowed testimony concerning the contents of the premarital agreement that had been ruled void and unenforceable. We have been unable to find a case in which an antenuptial agreement made in contemplation of divorce has been ruled void and unenforceable for a reason other than failure to live up to the criteria set out by this Court in Scherer v. Scherer, 249 Ga. 635(2), 292 S.E.2d 662 (1982). Where, using the Scherer factors, a trial court determines an antenuptial agreement is void and unenforceable, the agreement's terms are not incorporated into the final judgment and decree of divorce entered by the trial court (see Alexander v. Alexander, 279 Ga. 116, 610 S.E.2d 48 (2005)), and the contents of the agreement are not considered by the fact-finder. Cf. Corbett v. Corbett, 280 Ga. 369, 370, 628 S.E.2d 585 (2006). Under the unusual circumstances of this case which limit this Court to review the effect of a legal ruling but not the merits of the legal ruling, we conclude that once the trial court determined the antenuptial agreement is void and unenforceable, the existence of the agreement and its contents were not to be considered by the fact-finder. Id. Accordingly, the trial court erred when it permitted testimony concerning the contents of a pre-marital document the parties had executed, and the judgment must be reversed and the case remanded for a new trial.

  1. Because appellant's remaining enumeration of error is one likely to recur on retrial, we address its merits. Wilson v. Wilson, 277 Ga. 801(1), 596 S.E.2d 392 (2004).

Appellant also claims the trial court erred when it failed to give appellant's orally-requested charge on the elements of the crime of perjury. See OCGA § 16-10-70(a). The basis for the request was appellee's trial testimony admitting he had lied while under oath in a pre-trial deposition about his relationship with another woman. Instead of giving appellant's requested charge, the trial court instructed the jury on impeachment of witnesses. Assuming without deciding that the charge requested was apt, correct, and pertinent, it is not error to fail to give the requested charge if the charge given by the trial court sufficiently and substantially covered the principles of law. Mortensen v. Fowler-Flemister Concrete, 252 Ga.App. 395(2), 555 S.E.2d 492 (2001). Since the trial court gave a thorough instruction on the law of impeachment, it was not error to decline to give the charge requested by appellant.

Judgment reversed.

All the Justices concur.


1. OCGA § 19-3-63 states that "[e]very marriage contract in writing, made in contemplation of marriage, ... must be attested by at least two witnesses." The trial court's ruling that this statute applied to antenuptial agreements made in contemplation of divorce has not been made a subject of this appeal.

The last thing to note is a requirement that I was previously unaware of, having only just begun to investigate the mechanics of antenuptial agreements (though I almost always required that this be done in situations involving the drafting and execution of testamentary documents, having witnessed firsthand the nightmare that can result when it is NOT done), I did not know that the Code SPECIFICALLY REQUIRES that an antenuptial agreement be filed/recorded in the office of the Clerk of Court for the County within three months of its execution. Code Section 19-3-67 states as follows:

(a) Every marriage contract and every voluntary settlement made by one spouse with the other, whether or not in execution of marriage articles, shall be recorded in the office of the clerk of the superior court of the county of the residence of the spouse making the settlement within three months after the execution thereof. If such a contract or settlement is made in another state and the parties subsequently move into this state, the same shall be recorded within three months from the move. If the settled property is in this state and the parties reside in another state, the record shall be made in the county where the property is located within the time specified above.

(b) A contract or settlement which is not recorded as provided in subsection (a) of this Code section shall be of no force or effect against one who, bona fide and without notice, becomes a purchaser, creditor, or surety before the actual recording of the same.

This makes sense, of course - property rights are heavily protected here in Georgia!

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