Events | 2010.03.23
Prenups undermine marriage | Rupert Myers
If the supreme court backs prenuptual agreements then lawyers will get richer but Britain will be a poorer place
You may not be particularly moved by the litigation of the extremely rich, and it is hard to see – beyond a certain level of wealth – why anyone could really care, but ground-breaking changes to the legal system are often funded by those with deep pockets, and this week the supreme court is hearing an appeal in which it will rule on the effect of prenuptial agreements for us all.
Seeking to protect her oodles of cash, the heiress of a German paper fortune, Katrin Radmacher, made Nicolas Granatino sign a contract stating that he would not make a claim against her in the event of divorce. Having had two children in eight years of marriage, and now divorcing in London where such contracts historically have had no effect, Granatino has claimed for some of Radmacher\'s multimillion pound fortune. One might understand why he might feel entitled to renege on the deal – after all, they have both been complicit to varying degrees in the breaking of a more socially significant, arguably an objectively more important agreement: that of their marriage vows.
If Granatino is bound by his prenuptial agreement, then from now on the overwhelming majority of these contracts will be upheld, in a move which should be of real concern for people who aren\'t lawyers everywhere.
First, are you happy to live in a society in which at the point of marriage, one party holds the other to ransom to sign a document? Those head-over-heels in love may pay less regard to the possibility of divorce than rationality would tell us that they should. Nobody marries with a keen eye to their divorce, so it is very hard to justify an argument that says "when you signed this, you knew what it meant and should be held to it" when, in reality, the husband or wife might feel that they may as well be signing a contract predicated upon them winning the world heavyweight boxing championship. Their level of consideration of the finer points is unlikely to be detailed when effectively the person offering them the pen is claiming that the document will never be needed.
Second, will people really want to sit down and pay for the legal advice necessary to draft a bombproof prenuptial agreement? I say bombproof because broadly speaking there are two types of divorce: the ones in which both parties shrug their shoulders wearily and come to an arrangement which might in the circumstances be considered amicable, and the type where they fight on until the bitter end, the assets decimated beyond recognition, leaving the lawyers puffing on their cigars and exclaiming love for the smell of ancillary relief hearings in the morning. If you\'re in a category one divorce, you don\'t need this document, and if you\'re headed for the legal equivalent of the fields outside Agincourt, then that document can\'t possibly be good enough to anticipate all the legal problems that will be chucked your way.
The blindness of love aside, the sorts of situations in which one party might really want a prenup are just the sort of circumstance in which there may already exist a vast inequality between wife and husband. This may be just a material inequality, but may extend to an intellectual inequality, or a skew in the dynamics of power within the relationship. Lawyers call this duress, and the sort of duress that one can anticipate being exerted by a partner to safeguard their assets is just the sort of argument that might well be used to escape the document later.
The courts of England and Wales have only latterly come to the point at which they attempt to uphold a principle of equality between husband and wife upon divorce, a position welcomed rightly by campaigners who long felt that the contributions of women who stayed at home were undermined by the divorce laws. Allowing prenups would provide a foolproof circumvention of this slow process of development.
If the supreme court chooses to uphold the coldhearted principle that those who sign on the dotted line get what they bargain for, then the scope of prenuptial agreements becomes limitless, and the dangers of allowing parties to contract in a way which undermines the construct of marriage begin to make the institution redundant. In short, if your concerns are that the relationship will not last and you would like to hold on to all your money, this probably isn\'t the best time to get married.
The court will also be effectively creating a new law, something which we should all be hesitant to celebrate. The politicisation of America\'s supreme court and the arguments around judicial activism are those which the system in England and Wales has thus far sensibly avoided.
From a lawyer\'s perspective, I do hope the dear supreme court justices bring about this change, as the legal aid budget is a-slimming. Not only will solicitors get work from the consultation and drafting involved in this development, but now we will also be involved in all the satellite litigation regarding the validity of the contract, and the interpretation of the contract upon the marital assets.
As a human being, however, it seems like a tragically poor idea. Anybody who thinks that prenuptial arrangements could simplify divorce law is kidding you in all but one way: it will simplify the assets of the parties by putting more of them into the hands of your divorce lawyers.
For more information, please visit
http://www.guardian.co.uk/commentisfree/[...]ptual-agreements-supreme-court
