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Vardags Family Law Essay competition 2023/24 | Erin Thompson

Erin Thompson - Oxford Brookes University

Should prenuptial agreements be given binding contractual force, in order to respect the partys autonomy as per Baroness Ruth Deech, in the progressive society we live in today?

The history of pre-nuptial agreements in English law

Throughout the history of the English legal system, there has been a persistent disapproval of the enforcement of prenuptial agreements: from the idea of prenuptial agreements undermining the institution of marriage by contemplating divorce at the outset to the view that they should be of very limited significance, the prenup has remained in an area of uncertainty until the recent breakthrough case of Radmacher v Granatino 2010. Such case marked a seismic shift in the law relating to marital agreements highlighting where a prenup is entered into freely the court should give effect to it unless it would be unfair under the circumstances to hold parties to it, further introducing a newfound respect for individual autonomy within modern relationships today. Baroness Deech presents herself as an advocate of autonomy-based approaches to family law, favouring a cast iron approach to prenuptial agreements in that they should be given contractual force to respect the partys autonomy. There is evidence of movement towards Deechs reductionist approach through the recent recommendation proposed in the Law Commission Report, Matrimonial Property Needs and Arrangements 2014, stating that prenups should be put on statutory footing and regarded as legally enforceable contracts in an attempt to aid couples that wish to have control over the possible financial consequences upon divorce. However, the report further emphasised that if an imbalance in fairness between the parties was discovered, the court should retain the power to set aside the prenup for such a reason. This contrasts the cast iron stance taken by Baroness Deech who is tenacious in her argument that prenuptial agreements must be given binding contractual force with no power to be set aside even if circumstances between the parties subsequently change. Such opposing stances reveal a clear debate as to whether giving prenuptial agreements contractually binding force is crucial in respecting the autonomy of individuals and further preventing the risk of legal paternalism or whether by encouraging such agreements, we are in turn destroying the sole purpose of marriage, as a lifelong commitment, by foreseeing the end before it has begun.

The Matrimonial Causes Act 1973: The Gold Diggers Charter

In 1973, the Matrimonial Causes Act introduced a change in financial provisions for spouses following divorce proceedings: such legislation came into force with the intention of providing discretionary powers to divide property and assets so that spouses, particularly women, could achieve a degree of financial independence on relationship breakdown preventing hardship. This provided financial reassurance for primarily the non-moneyed spouse within the marriage, which in the 1970s, was more commonly the wife due to the breadwinning husband and homemaking wife narrative which predominated at such time and therefore it was primarily the woman who had little to no financial independence, and as a result majorly benefitted from such legislation. Following from the enactment of the Matrimonial Causes Act 1973, the stereotype of women acting as gold diggers arose due to the financial aid that could be acquired from such legislation, further being labelled by the house of lords as the gold diggers charter. Such a stereotype of women purely marrying for gold digging purposes proves detrimental to the undermining of women throughout society further suggesting that women are almost incapable of acquiring financial independence and being self-sufficient without the reliance of a man. This stereotype can be challenged however through the idea of prenuptial agreements as a legally binding contract: by giving prenups the power to be a legally binding agreement it acts as an antidote to gold digging, and provides reassurance that the rightful spouse will get their rightful share of assets upon the potential breakdown of marriage. Furthermore, by giving prenuptial agreements a legally binding base it creates an element of permanence within the agreement which will in turn help to combat such gold- digging stereotypes of women, whilst eliminating the notion of female dependency on wealthy men, further promoting the autonomy of individuals within the relationship. However, it has been questioned whether by trying to avoid such description of a gold digger, it in turn, hinders the autonomy of the less moneyed individual as it creates an overwhelming pressure to sign the prenuptial agreement to prove the inapparency of any gold-digging motives. This could have a detrimental economic impact on women who undertake majorly domestic and reproductive labour throughout the marriage, further inhibiting their autonomy due to being less powerful economically than their spouse, whilst uplifting the autonomy of the moneyed individual.

The notion of dividing assets so that financial equality is sustained between spouses, (as presented in the Matrimonial Causes Act 1973), was further emphasised in the case of White v White 2000. Lord Nicholls highlighted that the redistribution of assets on divorce should not depend on which spouse earned the money and built up the assets. This presents an attempt to eliminate bias in favour of the money earner and ensure fairness is sustained on the outcome of divorce. However, in doing so, in cases involving large amounts of wealth the main share of assets no longer remained reserved for the income producing spouse. This highlights the paternalistic control the courts have over the parties autonomy regarding their property and assets, and whilst masked by the idea of equality, allows for the continuance of gold digging presumptions by providing a gateway for the lesser moneyed spouse to receive a large financial award in spite of making little or no direct financial contribution, further enhancing the stigma around female dependency instead of promoting the individual autonomy and independence we see today from both parties. The progression of prenuptial agreements as a legally binding contract, as highlighted by Baroness Ruth Deech, would help to maintain a level of respect of individual autonomy further suiting the individualism and uncertainty of modern society, whilst allowing for legislative advancement alongside societal changes within the idea of marriage.

The Liberalisation of the Institution of Marriage

In recent years there has been evidence of a movement towards liberalisation of the institution of marriage. In 2021, The Office for National Statistics on Divorce revealed a 9.6% increase in divorces granted in England and Wales, when compared with 2020 statistics. This conveys how society is moving away from the traditional notion of marriage as a lifelong commitment: the gradual increase in divorce highlights how marriages today do not last forever, uncovering the modern notions of uncertainty and unknowability within contemporary relationships. The idea of uncertainty links to the liberalist theory which views time as constantly progressing towards a yet unknown future. However, such uncertainty poses a threat to the autonomy of individuals, which the liberalist would argue undermines the control the autonomous subject has over their future and instead causes the individual to be controlled by such unpredictability. By giving the prenuptial agreement legally binding power, it will let the individual retain control of the unknown future by ensuring that their assets are protected in an era where divorce is commonplace. Furthermore, this will remove the incentive to marry for money and support the newfound idea of marriage based on interpersonal connections and self-fulfilment.

The prioritisation of self-fulfilment within marriages today resembles the modern notion of the pure relationship. Sociologist Anthony Giddens highlights how individuals remain in relationships today only for as long as it delivers enough satisfaction for each individual to stay within it. With the increase in opportunities for women in the workplace and the rising females in positions of power, women are acquiring more financial independence and therefore the reliance on a breadwinning husband is no longer needed. As a result, the fight for an unhappy marriage becomes unnecessary and the self- sufficient individual will feel more inclined to opt for divorce to remove themselves from an unfulfilling situation. A contractually binding prenuptial agreement would satiate the notion of a pure relationship as it would allow the autonomous individual to exit a marriage how they first entered, without having to lose assets they acquired beforehand. Furthermore, the prenuptial agreement creates an element of predictability upon foreseeing the end of the marriage which then allows for a relationship purely focused on present time satisfaction and self-development until such satisfaction is fulfilled no longer, instead of a marriage driven by tradition of unpleasurable lifelong commitment.

The Idea of Marriage as a Life-Long Commitment

Traditionally, marriage was seen as a form of lifelong commitment and faithful partnership to another person. This applies to the most commonly cited definition of marriage in law as highlighted in the case of Hyde v Hyde and Woodhouse 1866, in which the family was referred to as the voluntary union
 for life of one man and one woman to the exclusion of all others. Although such definition presents an unprogressively, reductionist view of marriage, the reinforcement of marriage as a voluntary union for life is threatened by the notion of prenuptial agreements and the progression towards such agreement gaining legally binding force as it demonstrates contrast to the idea of lifelong commitment and emphasises the foreshadowing of divorce before the marriage has begun. Furthermore, the movement towards the prenup obtaining binding powers reveals an element of encouragement towards the idea of divorce, making it seem more accessible and acceptable and therefore, in the already individualistic society that we live in today, it will leave people even less inclined to work through the natural challenges that marriage brings and instead opt for a divorce.

Similarly to the traditional view, from a Functionalist perspective, one would argue that the role of marriage is an integral part of maintaining a strong family unit and an environment consisting of love and comfort for the spouses and any children they may have. The prenuptial agreement could be seen to go against the functional ideal and introduce a concept of distrust and a lack of faith particularly from the wealthier spouse. By being asked to enter such a contract before the marriage has taken place, this could potentially lead to a lack of confidence in either spouse concerning the longevity of the relationship as well as placing an element of doubt at the beginning of the marriage creating instability from the get-go and as a result would be more likely to end in divorce. Furthermore, if the agreement were to be binding, the financial security that the prenuptial agreements would bring for the wealthier spouse, could increase the chances of disloyalty and unreasonable behaviour due to the lack of care or view that they dont have anything to lose with the security blanket provided through the prenuptial agreement, especially in a society where self-fulfilment and satisfaction now takes priority. This creates a hostile environment between the spouses and contradicts the functionalist idea of love and comfort and the creation of a strong family unit. The breakdown of the family unit could prove detrimental to children as a stable home environment is crucial in ensuring emotional and physical well-being as well as maintaining social cohesion through adequate socialisation of societys norms and values. In addition to this, Whilst the prenup could provide too much security for the wealthier spouse, there is a further risk that through a legally binding prenuptial agreement, and the limit it places on the courts ability to ensure a fair resolution, the not so wealthy spouse could face struggle through lack of savings and income to support themselves if the marriage were to end. This rebuts Lady Ruth Deechs idea of prenuptial agreements respecting the individuals autonomy, as this could lead to individuals remaining in unhappy relationships due to the fear that they may not be able to support themselves, or if they were to result to divorce then this would present a risk of poverty for the lesser moneyed spouse and further concerns regarding children and the maintenance of their standard of living.

However, it can be presumed that the enforcement of prenups as a legally binding contract could in fact enable a couple to enter their marriage on a strong equal footing, displaying support for the notion of marriage as a lifelong commitment, as well as respecting their autonomy regarding their financial arrangements in event of future hardship and potential divorce. By arranging a prenuptial agreement collectively before the commitment is made, it illustrates a level of maturity between the parties within the contract as well as encouraging open communication regarding the division of assets in the event of marital breakdown, displaying a clear open footing going into the relationship. This will in turn help to maintain transparency and honesty between the spouses meaning that the marriage will as a result be more likely to last a lengthy duration further providing a stable, consistent environment for potential upbringing of children. In an individualistic society, the prenuptial agreement is therefore suited to the modern ideal of marriage, based on interpersonal connections continued only insofar as it is thought by both parties to deliver enough satisfaction for each individual to stay within it, as per Giddens, as it allows for predictability in a time of uncertainty as to what the future could bring.

Conclusion

Upon summarisation of the argument presented by Baroness Ruth Deech, that prenuptial agreements should be given binding contractual force in order to respect the partys autonomy, it is evident that society is progressing towards an individualistic and uncertain future, as oneself is in constant search for fulfilment and improvements in satisfaction. With the rising opportunities for women, they are no longer in need of unfulfilling marriages and present financially sufficient autonomous beings of which the prenuptial agreement would bear no detriment upon. The notion of gold digging therefore holds limited significance upon the reason for marriage today as the liberalist would suggest individuals no longer use marriage as a form of financial security highlighting the newfound societal independence and the movement towards marriage as a self-satisfying mechanism until it satisfies no more. Therefore, the prenuptial agreement would aid the unpredictability of modern relationships and create ease allowing the spouse to continuously search for the contentment they desire. Although it could be said that a legally binding prenuptial contract poses threat to the tradition and history of marriage as a lifelong commitment, such traditions have been overlooked by the modern expression of an open autonomous future, of which the prenuptial agreement would help to provide a free exit of relationships contrary to the needs of the free- spirited individual.

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Bibliography

Cases and Legislation

F v F (Ancillary Relief: Pre- Nuptial Agreement) [1995] 2 FLR 45 Matrimonial Causes Act 1973, s23

N v N (Jurisdiction) [1999] 2 FLR 745

Radmacher v Granatino [2010] UKSC 42

White v White [2000] UKHL 54

Books

Herring J, Family Law (10th edn, Pearson 2023)

Journal Articles

Gordon E, The Open Future- analysing the temporality of autonomy in family law [2020] 32(1) child and family law quarterly.

Thompson S, In Defence of the Gold Digger [2016] 6(6) onati socio legal series.

Official Publications

Law Commission, Matrimonial Property, Needs and Arrangements (Law Com No 343, 2014)

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