dissenting.
In this case of first impression, the majority grants a special status to prenuptial agreements in contemplation of marriage ending in divorce, excepting that single type of marriage contract from this state’s longstanding statutory mandate that all prenuptial agreements be attested in writing by at least two witnesses. The majority defends its creation of that special status by making a disingenuous semantical argument, by misinterpreting OCGA § 19-3-63 as inflexibly applying only to agreements settling property rights at death, by completely disregarding the clear intent of Scherer v. Scherer, 249 Ga. 635 (292 SE2d 662) (1982), to limit the enforceability of modern prenuptial agreements more strictly than other marriage contracts, and by inexplicably relying on a modern uniform act which the General Assembly of Georgia has not seen fit to pass.
1. “OCGA § 19-3-63 states that ‘(e)very marriage contract in writing, made in contemplation of marriage, . . . must be attested by at least two witnesses.’ ” Chubbuck v. Lake, 281 Ga. 218, fn. 1 (635 SE2d 764) (2006). The phrase “in contemplation of marriage” is not subject to the narrow construction posited in the majority opinion. I have not located any case from either this state or another jurisdiction, and the majority cites none, which holds that a prenuptial agreement settling the issue of alimony cannot be considered a contract in contemplation of marriage. To the contrary, we have previously abandoned a similar “fine line” distinction. Sanders v. Colwell, 248 Ga. 376, 378 (1) (283 SE2d 461) (1981).
A prenuptial, antenuptial, or premarital agreement is properly defined as a contract between prospective spouses which is made in contemplation of marriage, and generally in consideration thereof, and which determines property rights and economic interests either upon one spouse’s death or upon a divorce. Holler v. Holler, 612 SE2d 469, 473-474 (II) (S.C. App. 2005); Gross v. Gross, 464 NE2d 500, 504 (Ohio 1984). Indeed, the very uniform act on which the majority relies as persuasive authority defines “premarital agreement” as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” Unif. Premarital *653Agreement Act § 1 (1) (1983). Compare Ahmed v. Ahmed, 261 SW3d 190, 194 (Tex. App. 2008) (postnuptial agreement could not have been made “in contemplation of marriage”).
Therefore, cases such as Scherer and Chubbuck which describe prenuptial agreements settling alimony issues as being “in contemplation of divorce” are simply referring to agreements in contemplation of marriage ending in divorce, as distinguished from those agreements in contemplation of marriage lasting until death. The majority arbitrarily describes only the latter as “in contemplation of marriage,” even though they could be called antenuptial agreements “in contemplation of death” just as easily as the former can be described as “in contemplation of divorce.”
Accordingly, prenuptial agreements settling the parties’ rights in the event of a divorce clearly come within the plain terms of a statute which expressly applies to contracts made “in contemplation of marriage.”
2. Neither OCGA § 19-3-63 nor any other section of Article 3, OCGA § 19-3-60 et seq., limits its application to marriage contracts which involve a transfer of property. To the contrary, we have held that a prenuptial agreement which waives each spouse’s rights in the other’s property either before or after death and which does not contemplate a conveyance of property is an enforceable marriage contract pursuant to OCGA § 19-3-62 (b). Sieg v. Sieg, 265 Ga. 384, 385-386 (2) (455 SE2d 830) (1995).
Prior to 1982, an exception to the enforceability of antenuptial agreements applied to those that purported to settle alimony in the event of a future divorce. Scherer v. Scherer, supra at 638 (2). Thus, the addition of such a divorce provision to an otherwise enforceable prenuptial agreement formerly rendered the whole contract illegal. Birch v. Anthony, 109 Ga. 349, 350 (34 SE 561) (1899). See also Reynolds v. Reynolds, 217 Ga. 234, 255 (6) (123 SE2d 115) (1961), which was overruled in Scherer v. Scherer, supra at 640 (2). Such a prenuptial agreement was not converted into something other than a marriage contract, but its purpose with respect to divorce caused it to violate public policy. Therefore, this Court simply never considered it necessary to determine whether such an unenforceable contract also violated Article 3. However, the mere fact that an agreement is unenforceable for one reason obviously does not make it automatically enforceable when a change in the governing law makes that reason no longer applicable. Thus, it is actually the majority opinion which “defies common sense and logic. ...” (Maj. Op. p. 649.)
An antenuptial agreement relating to the rights of the parties upon divorce “is a type of contract and must, therefore, comply with ordinary principles of contract law. [Cits.]” McHugh v. McHugh, 436 *654A2d 8, 11 (Conn. 1980). “The contract must meet the usual requirements of offer, acceptance, and consideration. . . . [Cit.]” Howard O. Hunter, Modern Law of Contracts § 24:13. Contrary to the majority opinion, regardless of whether the prenuptial agreement is to be effective upon death or divorce, “marriage itself is ordinarily the consideration. [Cits.]” 5 Richard A. Lord, Williston on Contracts § 11:8 (4th ed.). Indeed, the prenuptial agreement here expressly recites as consideration the “entering into of a legal marriage between the parties.” The fact that marriage is the consideration in all types of antenuptial agreements, including the one between the parties to this case, gives yet another indication that a prenuptial agreement which may become effective upon divorce is “in contemplation of marriage.” Furthermore, “[t]he agreement cannot violate a statute. . . . [Cits.]” Hunter, supra. See also McHugh v. McHugh, supra.
3. Nothing in Scherer indicates that, contrary to these principles, it implicitly excluded any pre-existing statutory requirements otherwise applicable to marriage contracts. If the Scherer criteria are exhaustive as the majority opines, then even the statute of frauds would no longer be applicable. See OCGA § 13-5-30 (3). Furthermore, since the three-part test of Scherer is the only common-law restriction on prenuptial agreements settling the issue of alimony, the majority opinion exempts such agreements from the requirement of attestation by even one witness. In Scherer, however, this Court clearly anticipated that the enforceability of modern prenuptial agreements would not be determined with any more leniency than that of other marriage contracts.
Indeed, Scherer adopted its three-part test in order to effectuate its holding that modern antenuptial agreements “are not absolutely void as against public policy,” but “should not be given carte-blanche enforcement.” Scherer v. Scherer, supra at 640 (2), 641 (3). Of particular interest, the first part of the Scherer test, similar to OCGA § 19-3-63, seeks to prevent fraud or duress in the execution of prenuptial agreements. Scherer v. Scherer, supra at 641 (3). Furthermore, we have continued to “recognize! ] the importance of marriage as a social institution and the vital public policy interests that can be undermined by antenuptial agreements. [Cits.]” Blige v. Blige, 283 Ga. 65, 67 (2) (656 SE2d 822) (2008). See also OCGA § 19-3-6 (“Marriage is encouraged by the law. Every effort to restrain or discourage marriage by contract, condition, limitation, or otherwise shall be invalid and void. . . .”).
4. In light of that continuing public policy and my understanding of marriage contracts as expressed in this state’s statutory and case law, I can only conclude that a prenuptial agreement which waives spousal rights upon divorce constitutes a marriage contract subject *655to the provisions of Article 3, including OCGA § 19-3-63. The explicit attestation requirement in that statute obviously distinguishes this state’s law from the uniform act which has never been adopted in this state and which omits any such attestation provision. And the foreign cases cited in footnote 29 of the majority opinion do not address the applicability of a statutory attestation requirement to a prenuptial agreement.
Decided June 15, 2009 — Reconsideration denied June 30, 2009.Moreover, the majority’s complaint that application of Georgia’s statutory attestation requirement to prenuptial agreements settling alimony issues would do a disservice to the bench and bar, who have supposedly viewed the Scherer criteria as exhaustive, fails to recognize explicit acknowledgments by both the bench and bar that the applicability of OCGA § 19-3-63 was an open question. Chubbuck v. Lake, supra; Dan E. McConaughey, Ga. Divorce, Alimony and Child Custody § 2:24, p. 85 (2007-2008 ed.); Jon W. Hedgepeth, Premarital Agreements and Divorce Procedure, 24454 NBI-CLE 1, 10 (2004). Indeed, in Chubbuck, which is relied upon by the majority, we specifically acknowledged that the issue of whether “this statute applied to antenuptial agreements made in contemplation of divorce” was not made a subject of the appeal. We granted an interlocutory appeal here in order to resolve the very issue which was left open in Chubbuck. Moreover, the majority’s holding causes substantial confusion by raising additional questions, such as whether OCGA § 19-3-63 applies to prenuptial agreements which deal with both divorce and death, or which define each spouse’s marital and separate property rights during the marriage.
The antenuptial agreement here was signed by the parties and one witness — the notary public. . . . Because two witnesses did not sign the antenuptial agreement here, on its face it does not satisfy the plain requirement of [OCGA § 19-3-63], and it is invalid and unenforceable.
Siewert v. Siewert, 691 NW2d 504, 506-507 (Minn. App. 2005). Therefore, the trial court’s judgment denying the motion for partial summary judgment should be affirmed in Case Number S09A0197, and the cross-appeal should be dismissed as moot in Case Number S09X0198. Accordingly, I respectfully dissent.
I am authorized to state that Justice Benham joins in this dissent.
*656LaFon & Hall, Beverly J. Hall, for appellant, Banks & Stubbs, Robert S. Stubbs III, for appellee.