Ferengi Prenuptial Agreements

Star Trek Deep Space 9 addressed many legal issues in its seven seasons, from whether a host of a symbiont could be tried for the crimes of a past host/symbiont (Dax), to the right to a fair trial (Tribunal) and prosecutorial misconduct from presenting false evidence in a court hearing (Rules of Engagement).

Some of the biggest legal issues presented were on Ferengi culture across multiple episodes. Ferengi law prohibited women from wearing clothes, leaving the home, learning to read and earning profit. Moreover, 53% of Ferengi population was female, casting the laws as a form of gender-apartheid.

Adding insult to further injury, women who wished to marry had to sign a Waiver of Property & Profit, which was a prenuptial agreement that prohibited the prospective wife from 1) owning any property and 2) making any claims against the husband’s estate in the event the marriage ends.

Dabo_Rom_9937Many of these issues were the central themes in the episode Ferengi Love Songs, which addressed prenuptial marital agreements and equal protection under the law.

Validity of Ferengi Prenuptial Agreements

In Community Property states (or planets), property acquired during a marriage is the joint property of the “community” and would be divided equally at either divorce or death (unless the community interest owned by the deceased spouse is specified in a will). Conversely, property acquired before marriage, or acquired by gift or devise, is the separate property of a spouse.

However, the property rights of the community may be altered by a “contract” between the husband and wife (such as a premarital agreement).

In California, these agreements are executed without consideration and become effective when the marriage begins.

Dabo_9948And no [fictional] race is better at contracts than the Ferengi.

Considering these legal principles, could the Ferengi Rom have a valid prenuptial agreement with his Bajoran fiance Leeta that prohibited her from having an interest in his property?

Could Rom prohibit Leeta from owning any property?

As a preliminary matter, simply decloaking before a prospective wife with such an agreement is pretty much entering the command code to set your relationship on self-destruct. With a zero second countdown. It truly would be the no-win scenario.

California law states for a premarital agreement to be enforceable, the following must be demonstrated:

(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

(1) That party did not execute the agreement voluntarily.

(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.

(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.

(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.

(5) Any other factors the court deems relevant.

Cal Fam Code § 1615.

Right out of the space dock, the premarital agreement would be unenforceable on its face if the prospective wife was not represented by counsel to advise the prospective wife on her property ownership rights or possible community property rights. Additionally, there would be a strong public policy agreement against stripping the prospective wife of her right to own any property. That alone would leave the premarital agreement dead in space.

While case law has upheld premarital agreements with spousal support waivers that are  “executed by intelligent, well-educated persons, each of whom is self-sufficient in property and earning ability, and both of whom had the advice of counsel regarding their rights and obligations as marital partners at the time they executed the waiver,” divesting a woman of her right to own any property would completely destroy the prospective wife’s ability to be “self-sufficient in property and earning ability.” In re Marriage of Pendleton & Fireman, 24 Cal. 4th 39 (Cal. 2000). Moreover, there is a huge difference between contracting away spousal support rights and a woman being reduced to property.

Turning to Oklahoma case law, an “antenuptial agreement” is enforcement if it is “fairly procured.” Okla. Stat. Ann. title 84, § 44; In re Estate of Cobb, 305 P.2d 1028, Syl. P 2 (Okla. 1956). One Oklahoma case stated:

To ensure fairness, antenuptial agreements that make no provision for the intended wife are given the “closest scrutiny.” Cobb, 305 P.2d at 1031. Further, agreements that do not provide (or meagerly provide) for the intended wife are valid only where “a full and fair disclosure was made to her of the extent and value of [her prospective husband’s] property before she signed it, or that she was aware to all intents and purposes of the nature, character and value of the estate which she was relinquishing . . . .” Id. at 1032 (emphasis added).

Gant v. Gant, 1994 U.S. App. LEXIS 20603 (10th Cir. Okla. Aug. 4, 1994).

The Gant case would be of little help to finding an enforceable Ferengi prenuptial agreement, because even if the prospective wife understood the value of the estate she was relinquishing, one could not argue giving up an interest in a future husband’s estate is the same as giving up her right to own property herself.

Dabo_Prenup_Phaser2It is highly unlikely that a prenuptial agreement that prohibited a wife from owning property would be valid. However, a prenuptial agreement that only protected the pre-marriage assets of the parties is a “traditional” prenuptial agreement. If Rom simply wanted to protect his own estate in the event of divorce, it likely would be a valid prenuptial agreement, depending on how the agreement was executed. Consider the following valid marital agreement:

WHEREAS, the parties to this agreement contemplate entering into the marriage relation with each other, and;

WHEREAS, [the husband], individually owns certain tangible and intangible property, a list of which is set out hereinafter in Exhibit ‘A’, the nature and extent of which has been disclosed to the [wife], and he desires that all property now owned or hereafter acquired by either [sic] shall be free, for purposes of testamentary disposition, divorce or otherwise, from any claim of the [wife], that may arise by reason of their contemplated marriage, other than as set out herein;

NOW THEREFORE,  in consideration of the premises and the mutual covenants herein contained, it is agreed as follows:

1. Both before and after the solemnization of the marriage between the parties, [the husband] shall separately retain all rights in his own property, including all interest, rents and profits which may accrue or result in any manner from increases in value, and he shall have the absolute and unrestricted right to dispose of his property, free from any claim that may be made by the [wife] by reason of their marriage, and with the same effect as if no marriage had been consummated between them, whether such disposition be made by gift, conveyance, sale, lease; by will or codicil or other testamentary means; by laws of intestacy; or otherwise. Any property, real, personal or mixed, acquired after the date of said marriage shall be considered joint property unless agreed to in writing, signed by both parties.

. . . .

8. [The wife] has examined the financial statements attached hereto and made a part hereof as Exhibit ‘A’ and has had the opportunity to question and examine all items therein, and acknowledges that fair disclosure has been made by [the husband], as contemplated under the provisions of Section 43-8-72, Code of Alabama (1975), as amended. Each certifies that he or she has had an independent and separate counsel and has been independently advised and has been given, without limitation, all information requested. Each further certifies that counsel has advised and informed him or her of the legal effects of this document.

9. In the event of the death of [the husband] or the granting of a final divorce decree, [the wife] shall have no right to any claim against the estate of [the husband] based on spousal or marital rights including, but not limited to maintenance, support, or property settlements, by reason of or on account of dissolution of the marriage, or by reason of death.”

Exhibit A, which was a document attached to the antenuptial agreement, was labeled “Property to be Retained by [the husband], Individually, Without Any Claims by [the wife],” and it included six paragraphs identifying real and personal property, as follows:”

1. Any pension plan, including all stocks owned prior to marriage of parties, and including any IRA accounts, SEP IRA accounts or 401k accounts.

2. All checking and/or savings accounts, including money market accounts individually  owned by [the husband], prior to marriage of the parties.

3. All jewelry owned by [the husband], including jewelry passed down to said [husband] by his parents, and/or grandparents, including his mother’s engagement ring, grandmother’s engagement ring, mother’s diamond/ruby ring, mother’s emerald ring, and father’s diamond cluster ring.

4. Automobiles owned prior to marriage, including BMW automobile [and] Ford Explorer.

5. Home, real estate, and furnishings located therein, located at [the marital residence].

6. All personal property and belongings owned by [the husband] prior to the marriage of the parties.”

Hood v. Hood, 72 So. 3d 666, 670-671 (Ala. Civ. App. 2011).

There is no question that a court, especially considering the contract would provide nothing to the wife in the event of divorce or death, would closely review a prenuptial agreement.

To be valid, a court would require having Leeta at least be represented by an attorney, with an opportunity to fully review Rom’s assets and understand what rights she was waiving.

Even then, the former Dabo Girl turned Jumja stick vendor, still might have been at a disadvantage to negotiate, given their differences in economic abilities.

Sadly, the episode does not have a happy legal ending, because neither party had an attorney. Instead of a prenuptial agreement that protected the interests of both Rom and Leeta, Rom gave away his money to an orphanage (a win for the children), effectively taking a vow of mutual poverty to marry Leeta.

If only there had been a law firm on DS9….

Now, let’s talk about equal protection under the law for Ferengi women who are banned from reading, wearing clothes, leaving the house, having a job, or earning profit….

No_Quark

…and don’t forget about the potential harassment suits over Quark’s employment contracts over Oo-mox….

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.