This section sets forth the conditions which must be proven to avoid the enforcement of a premarital agreement. If prospective spouses enter into a premarital agreement and their subsequent marriage is determined to be void, the enforceability of the agreement is governed by Section 7.

The conditions stated under subsection (a) are comparable to concepts which are expressed in the statutory and decisional law of many jurisdictions. Enforcement based on disclosure and voluntary execution is perhaps most common (see, e.g., Ark. Stats. ง 55-309; Minn. Stats. Ann. ง 519.11; In re Kaufmann's Estate, 171 A. 2d 48 (Pa. 1961) (alternate holding)). However, knowledge or reason to know, together with voluntary execution, may also be sufficient (see, e.g., Tenn. Code Ann. ง 36-606; Barnhill v. Barnhill, 386 So. 2d 749 (Ala. Civ. App. 1980); Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962); Coward and Coward, 582 P. 2d 834 (Or. App. 1978); but see Matter of Estate of Lebsock, 618 P.2d 683 (Colo. App. 1980)) and so may a voluntary, knowing waiver (see Hafner v. Hafner, 295 N.W. 2d 567 (Minn. 1980)). In each of these situations, it should be underscored that execution must have been voluntary (see Lutgert v. Lutgert, 338 So. 2d 1111 (Fla. 1976); see also 13 Dela. Code 1974 ง 301 (10 day waiting period)). Finally, a premarital agreement is enforceable if enforcement would not have been unconscionable at the time the agreement was executed (cf. Hartz v. Hartz, 234 A.2d 865 (Md. 1967) (premarital agreement upheld if no disclosure but agreement was fair and equitable under the circumstances)).

The test of "unconscionability" is drawn from Section 306 of the Uniform Marriage and Divorce Act (UMDA) (see Ferry v. Ferry, 586 S.W. 2d 782 (Mo. 1979); see also Newman v. Newman, 653 P.2d 728 (Colo. Sup. Ct. 1982) (maintenance provisions of premarital agreement tested for unconscionability at time of marriage termination)). The following discussion set forth in the Commissioner's Note to Section 306 of the UMDA is equally appropriate here:

"Subsection (b) undergirds the freedom allowed the parties by making clear that the terms of the agreement respecting maintenance and property disposition are binding upon the court unless those terms are found to be unconscionable. The standard of unconscionability is used in commercial law, where its meaning includes protection against onesidedness, oppression, or unfair surprise (see section 2-302, Uniform Commercial Code), and in contract law, Scott v. U.S., 12 Wall (U.S.) 443 (1870) ('contract . . . unreasonable and unconscionable but not void for fraud'); Stiefler v. McCullough, 174 N.E. 823, 97 Ind.App. 123 (1931); Terre Haute Cooperage v. Branscome, 35 So.2d 537, 203 Miss. 493 (1948); Carter v. Boone County Trust Co., 92 S.W. 2d 647, 338 Mo. 629 (1936). It has been used in cases respecting divorce settlements or awards. Bell v. Bell, 371 P.2d 773, 150 Colo. 174 (1962) ('this division of property is manifestly unfair, inequitable and unconscionable'). Hence the act does not introduce a novel standard unknown to the law. In the context of negotiations between spouses as to the financial incidents of their marriage, the standard includes protection against overreaching, concealment of assets, and sharp dealing not consistent with the obligations of marital partners to deal fairly with each other.

"In order to determine whether the agreement is unconscionable, the court may look to the economic circumstances of the parties resulting from the agreement, and any other relevant evidence such as the conditions under which the agreement was made, including the knowledge of the other party. If the court finds the agreement not unconscionable, its terms respecting property division and maintenance may not be altered by the court at the hearing." (Commissioner's Note, Sec. 306, Uniform Marriage and Divorce Act.)

Nothing in Section 6 makes the absence of assistance of independent legal counsel a condition for the unenforceability of a premarital agreement. However, lack of that assistance may well be a factor in determining whether the conditions stated in Section 6 may have existed (see, e.g., Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962)).

Even if the conditions stated in subsection (a) are not proven, if a provision of a premarital agreement modifies or eliminates spousal support, subsection (b) authorizes a court to provide very limited relief to a party who would otherwise be eligible for public welfare (see, e.g., Osborne v. Osborne, 428 N.E. 2d 810 (Mass. 1981) (dictum); Unander v. Unander, 506 P.2d 719 (Ore. 1973) (dictum)).

No special provision is made for enforcement of provisions of a premarital agreement relating to personal rights and obligations. However, a premarital agreement is a contract and these provisions may be enforced to the extent that they are enforceable are under otherwise applicable law (see Avitzur v. Avitzur, 459 N.Y.S. 2d 572 (Ct. App.).

Section 6 is framed in a manner to require the party who alleges that a premarital agreement is not enforceable to bear the burden of proof as to that allegation. The statutory law conflicts on the issue of where the burden of proof lies (contrast Ark. Stats.

ง 55-313; 31 Minn. Stats. Ann. ง 519.11 with Vernon's Texas Codes Ann. ง 5.45). Similarly, some courts have placed the burden on the attacking spouse to prove the invalidity of the agreement. Linker v. Linker, 470 P.2d 921 (Colo. 1970); Matter of Estate of Benker, 296 N.W. 2d 167 (Mich. App. 1980); In re Kauffmann's Estate, 171 A.2d 48 (Pa. 1961). Some have placed the burden upon those relying upon the agreement to prove its validity. Hartz v. Hartz, 234 A.2d 865 (Md. 1967). Finally, several have adopted a middle ground by stating that a premarital agreeement is presumptively valid but if a disproportionate disposition is made for the wife, the husband bears the burden of proof of showing adequate disclosure. (Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962); Christians v. Christians, 44 N.W.2d 431 (Iowa 1950); In re Neis' Estate, 225 P.2d 110 (Kans. 1950); Truitt v. Truitt's Adm'r, 162 S.W. 2d 31 (Ky. 1942); In re Estate of Strickland, 149 N.W. 2d 344 (Neb. 1967); Kosik v. George, 452 P.2d 560 (Or. 1969); Friedlander v. Friedlander, 494 P.2d 208 (Wash. 1972).

SECTION 7. ENFORCEMENT: VOID MARRIAGE. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

Under this section a void marriage does not completely invalidate an premarital agreement but does substantially limit its enforceability. Where parties have married and lived together for a substantial period of time and one or both have relied on the existence of a premarital agreement, the failure to enforce the agreement may well be inequitable. This section, accordingly, provides the court discretion to enforce the agreement to the extent necessary to avoid the inequitable result (see Annot., 46 A.L.R. 3d 1403).

SECTION 8. LIMITATION OF ACTIONS. Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.

In order to avoid the potentially disruptive effect of compelling litigation between the spouses in order to escape the running of an applicable statute of limitations, Section 8 tolls any applicable statute during the marriage of the parties (contrast Dykema v. Dykema, 412 N.E. 2d 13 (Ill. App. 1980) (statute of limitations not tolled where fraud not adequately pleaded, hence premarital agreement enforced at death)). However, a party is not completely free to sit on his or her rights because the section does preserve certain equitable defenses.

SECTION 9. APPLICATION AND CONSTRUCTION. This [Act] shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this [Act] among states enacting it.

Section 9 is a standard provision in all Uniform Acts.

SECTION 10. SHORT TITLE. This [Act] may be cited as the Uniform Premarital Agreement Act.

This is the customary "short title" clause, which may be placed in that order in the bill for enactment as the legislative practice of the state prescribes.

SECTION 11. SEVERABILITY. If any provision of this [Act] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [Act] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] are severable.

Section 11 is a standard provision included in certain Uniform Acts.

SECTION 12. TIME OF TAKING EFFECT. This [Act] takes effect ________________________ and applies to any premarital agreement executed on or after that date.

SECTION 13. REPEAL. The following acts and parts of acts are repealed:

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