History of Prenups and Marriage Contracts

Marrying with a prenup is not a modern phenomenon. Originally, prenups were used to convey women and property. In fact, women were considered a form of property. Parents were responsible for their daughters until they were married. Vestiges of this are still evident in wedding ceremonies when the pastor asks, “Who gives this woman to be married to this man?”

Historically, marriages have been arranged by parents. (They still are in some cultures.) The parents often drew up marriage contracts that they signed when the couple was betrothed or at the wedding ceremony.

Some parents employed professional matchmakers to maximize the benefits of particular marriages. In Genesis 24, Abraham sent his servant to find a wife for his son, Isaac. Abraham wanted to honor God by ensuring that Isaac would not marry a Canaanite, but rather a daughter from his father’s clan. Guided by God, the servant found Rebekah. The servant then negotiated the financial arrangements for her and brought her back to Isaac.

In some respects, the system of parents picking prospective mates works better than picking your own mate. Parents often make better choices for their children than children do for themselves because parents want what is best for their children. Parents usually choose someone of the same background, upbringing, and ethnicity. They look for financial stability and responsibility. In contrast, children’s decisions are too often based only on romantic feelings, without regard to the realities of what it takes to have a lasting marriage.

The way of fools seems right to them, but the wise listen to advice (Proverbs 12:15).

Ironically, marriage contracts and prenuptial agreements often gave property rights to the wife. It’s ironic because prenups today often keep women from having a claim on their husband’s property. Since women had no property rights themselves, they were reliant on husbands and parents for housing and meeting economic needs. A divorce from or death of a husband could equate to a death sentence for the wife.

This type of prenuptial agreement is still used in the Orthodox Jewish faith. Before the wedding ceremony couples sign a “ketubah.” While non-Orthodox Jewish families may use contemporary documents that are often flowery expressions of love, traditional ketubahs are marriage contracts …

… by which a bridegroom obligates himself to provide a settlement for his wife if he divorces her, or his heir if he predeceases her … From the root katav, “to write,” [it] is the name for both the written contract itself and for the amount the husband is obliged to settle on his wife. The main purpose of the ketubah is to prevent a husband [from] divorcing his wife against her will, which, in talmudic times, he had the right to do. The knowledge that he had to pay his wife her ketubah would serve as a check against hasty divorce.[i] 

Along with the prenup, there were often payments made to or from the parents for the daughter. “Consideration” is a term used in contract law that means something of value given in return for another item of value. Items of value can mean promises to perform. Because women were property, it is not surprising that there were payments made between or by the parents, depending upon the traditions and laws of the area. In our example of Isaac and Rebekah in Genesis 24, the servant gave precious gifts to Rebekah and her family when they agreed to her marriage. Marriage payments took three forms:

Bride price:     Money or property paid by the groom or his family to the parents of the bride.

Dowry:            Money paid to the groom or used by the bride to help her establish a household. A trousseau is a form of dowry. It usually consists of linens and clothing saved for marriage by the bride.

Dower:            Property given to the bride by the groom at the time of the marriage that was to be used by the bride to support herself in case she outlived her husband.

Engagement rings, depending upon your state, may be viewed as either a gift or consideration on a contract. In the case of a gift, it may be viewed as conditional or unconditional, the difference being whether it must be returned in the event the groom does not marry the bride. If it is determined to be unconditional or a gift, then the bride may be able to keep it regardless of the outcome.


[i] Jacob, Rabbi Louis. (n.d.) The ketubah or the marriage contract. My Jewish Learning. Retrieved December 29, 2013 from http://www.myjewishlearning.com/life/Life_Events/Weddings/Liturgy_Ritual_and_Custom/Ketubah.shtml

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