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A prenup undermines a marriage before it has even begun

25 February 2014

1:00 PM

25 February 2014

1:00 PM

A friend of mine, quite a distinguished lawyer, takes the view that marriage ceased to make sense after no-fault divorces came in. What, he says sternly, is the point of a contract when there’s no sanction if you break it? Well, quite.

But if no-fault divorce pretty well invalidates marriage after the event, prenups do quite a good job of undermining it beforehand. The point of marriage is that it’s meant to be a lifetime affair – the hint being in the ‘til death do us part’ bit – and the point of prenups is that they make provision for the thing ending before it even gets underway. You’re putting your assets out of the reach of the spouse before you’ve got round to endowing her with all your worldly goods, if the Anglican service is your bag.

The cue for all this is the Law Commission’s proposals for a new approach to dividing assets after a failed marriage, which follow a four-year consultation. They’ll be presented to the Justice Secretary Chris Grayling this week.

So far as the case against it goes, I can’t myself improve on the remarks of the Bishop of Shrewsbury last week, which should be borne in mind by all those who like to sound off about bishops blaming the government for poverty but ignoring the breakdown of marriage. This was a bishop doing his job, addressing one of the causes of social breakdown. And what the Rt. Rev Mark Davies said was:

‘Our society would be proposing to couples seeking marriage that they prepare their own divorce settlement before making the life-long promises of marriage. 

‘It is a legal provision which would surely empty the words of the marriage promise “for better for worse… to love and to cherish till death do we part” of all meaning.

‘Pre-nuptial agreements would render these promises provisional by the legal preparations which anticipate divorce.

‘We must ask ourselves, what message does this send to couples considering marriage? What message does this send to the young at a moment when the institution of marriage stands at such a historically, low ebb.’

Quite so.

The one thing, though, that prenups do have going for them is that they encourage an element of frankness in conversations between engaged couples which is, I think, rather healthy. It would be rather useful if couples were to talk less honeymoon and more money, income, assets and who’s earning what when children turn up, before the event. (And in this context, view me as an object lesson; it didn’t even occur to me to think finance before I married.)

Indeed, it’d be handy if would-be spouses talked more about all sorts of things. A friend of mine runs Catholic pre-marriage courses and one trick in his book is that he gets the assembled couples to shut their eyes and hold up their fingers to represent the number of children they’d like. And it’s remarkable, not just that couples differ – four versus two say – but that, when they open their eyes, they’re rather surprised by what their intended seems to want. As for the religion, if any, of the offspring…you’d be surprised how rarely they get round to talking through that too.

Prenups are an outward sign of one of the most troubling elements of the culture: our collective inability to make binding promises, ones that commit us into the future. But the plain speaking involved…that’s something even the properly committed can learn from.

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