What is the difference between a premarital agreement and a commercial contract?

Some of the commissioners debating the Uniform Act appeared to equate a premarital agreement with a commercial contract, and one court has emphasized that both parties contemplating marriage possess freedom of contract, which should not be restricted except as it would be in the context of a commercial contract. (Simeone v. Simeone (1990) 525 Pa. 392, 581 A.2d 162, 165-166 [not interpreting the Uniform Act].) Even apart from the circumstance that there is no statutory requirement that commercial contracts be entered into voluntarily as that term is used in Family Code section 1615, we observe some significant distinctions between the two types of contracts. A commercial

[99 Cal.Rptr.2d 268]

contract most frequently constitutes a private regulatory agreement intended to ensure the successful outcome of the business between the contracting partiesin essence, to guide their relationship so that the object of the contract may be achieved. Normally, the execution of the contract ushers in the applicability of the regulatory scheme contemplated by the contract, and the endeavor that is the object of the contract. As for a premarital agreement (or clause of such an agreement) providing solely for the division of property upon marital dissolution, the parties generally enter into the agreement anticipating that it never will be invoked, and the agreement, far from regulating the relationship of the contracting parties and providing the method for attaining their joint objectives, exists to provide for eventualities that will arise only if the relationship founders, possibly in the distant future under greatly changed and unforeseeable circumstances.

[99 Cal.Rptr.2d 268]