In Re Marriage of Pendleton & Fireman

I dissent.

In In re Marriage of Higgason (1973) 10 Cal.3d 476 [ 110 Cal.Rptr. 897 , 516 P.2d 289 ], this court unanimously held that premarital agreements waiving spousal support in the event of separation or dissolution of the marriage violate California’s public policy and are therefore invalid, leaving it to the trial court to determine at the time of separation or dissolution whether to award spousal support. Three years later, in In re Marriage of Dawley (1976) 17 Cal.3d 342 [ 131 Cal.Rptr. 3 , 551 P.2d 323 ], this court, again unanimously, came to the same conclusion. Our Legislature was fully *55 aware of these decisions when in 1985, in adopting provisions of the Uniform Premarital Agreement Act, it chose to omit the act’s provision allowing premarital waiver of spousal support, thus affirming the decisional law of this state that such waivers violate public policy.

In overruling by judicial fiat the Legislature’s decision to continue this state’s prohibition against premarital waivers of spousal support, the majority has (1) invaded the legislative domain, (2) invalidated a legislative decision reflecting sound public policy, and (3) failed to articulate an intelligible…

We are asked to decide whether a premarital agreement in which the parties to be married waive the right to spousal support in case of dissolution is enforceable. 1 The Court of Appeal held that such agreements are enforceable. It is not necessary to decide in this case whether all such agreements are enforceable regardless of the circumstances of the parties at the time enforcement is sought. We conclude that no policy of this state makes an agreement like that entered into by the parties to this action per se unenforceable, and affirm the judgment of the Court of Appeal.

I

Background

Candace Pendleton and Barry I. Fireman married on July 13, 1991. On July 1, 1991, they had executed a premarital agreement which provided, inter alia: “[Bjoth parties now and forever waive, in the event of a dissolution of the marriage, all rights to any type of spousal support or child support from the other; . . .” The agreement acknowledged that each party had been represented by independent counsel in the negotiation and preparation of the agreement, that counsel had advised each of the meaning and legal consequences of the agreement, and that each party had read and understood the…

I concur in the result.

The relevant statute provides that premarital agreements may concern any subject that does not violate public policy or a statute imposing a criminal penalty. (Fam. Code, § 1612, subd. (a)(7).) When a statute’s words are “clear and unambiguous our inquiry ends. There is no need for judicial construction and a court may not indulge in it.” (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047 [ 80 Cal.Rptr.2d 828 , 968 P.2d 539 ].) That is true here. Any lingering question whether the Legislature intended to omit premarital spousal support agreements from the scope of Family Code section 1612 is dispelled by subdivision (b), which prohibits premarital agreements to waive or reduce child support. Had the Legislature desired to prohibit spousal support agreements, it could have added a few words similar to those of subdivision (b).

Clearly, the parties did not conspire to violate the criminal law. The only question is whether their premarital agreement violated public policy. I agree with the majority that it did not.

We are asked to decide whether a premarital agreement in which the parties to be married waive the right to spousal support in case of dissolution is enforceable. [1] The Court of Appeal held that such agreements are enforceable. It is not necessary to decide in this case whether all such agreements are enforceable regardless of the circumstances of the parties at the time enforcement is sought. We conclude that no policy of this state makes an agreement like that entered into by the parties to this action per se unenforceable, and affirm the judgment of the Court of Appeal.

Candace Pendleton and Barry I. Fireman married on July 13, 1991. On July 1, 1991, they had executed a premarital agreement which provided, inter alia: "[B]oth parties now and forever waive, in the event of a dissolution of the marriage, all rights to any type of spousal support or child support from the other; ..." The agreement acknowledged that each party had been represented by independent counsel in the negotiation and preparation of the agreement, that counsel had advised each of the meaning and legal consequences of the agreement, and that each party had read and understood the agreement and…