ABSTRACT
Premarital agreements have become enforceable in the USA over the past few decades. Traditionally unenforceable due to public policy concerns, these agreements gained acceptance amid the advancement of gender equality. Yet, critics argue that the enforcement of premarital agreements may actually perpetuate economic vulnerabilities among women. These gender injustice-based critiques, however, are not entirely convincing, as they fail to fully consider prenups’ distinctiveness as contracts in the sphere of family. To rectify this flaw, drawing on a Walzerian notion of distributive justice, this article proposes a novel justice-based critique of prenup enforcement, arguing that enforcing premarital agreements is wrong in the sense that it facilitates the violation of the distinctive distributive principles that govern the sphere of family. It contends that such enforcement may introduce market norms into the family, distort the shared social understanding of marriage, and promote the translation of market-based inequality into imbalanced power within the family. However, thoroughly denying the enforceability of premarital agreements can be criticized as failing to respect the autonomy of spouses, which is widely recognized as a central element of modern marriage. In response to this potential objection, this article introduces the Four-Option Model as an alternative, which allows spouses to choose among four predefined marital property regimes. This approach is expected to preserve the relational integrity of marriage, while respecting the individual autonomy of spouses.
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Yuchen Zhao, Defending family justice: a new approach against enforcing premarital agreements, International Journal of Law, Policy and the Family, volume 39, issue 1, 2025. Published: 25 September 2025.
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