A prenup undermines a marriage before it has even begun

25 February 2014

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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  • BDJ

    If marriages weren’t so disposable and the laws of divorce were even REMOTELY equitable, then prenups wouldn’t be needed.

    But we do not live in a mythical fantasy world like that. We live in the real world where people marry no longer for love – but for the payday after a divorce.

  • james noble

    It’s an actuality that your blog entries are so special and intriguing and I revels in a considerable measure while perusing your posts in light of the fact that you clarified your post profoundly in a simple.

  • james noble

    This doesn’t happen do such points. With the finest associated with regard relationships conclude. Generally. No-one exactly who separations believed they would, right at that moment they hitched.

  • Lane Dupert

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  • mrsjosephinehydehartley

    Conditional love contracts are an outward sign of inward disgrace, perhaps.

  • balance_and_reason

    Yes, I think this probably comes about due to the one sided outcomes of divorce settlements over past few decades.

  • Mr_Ominous

    Marriage is redundant. Society no longer adheres to the principles that make it possible for marriage to exist. Family and divorce courts are anti-male. Only the most foolish of men get married these days.

  • Fredric Dennis Williams

    A pre-nuptial agreement may be as much a part of the marriage contract as any promise included in the conventional vows. Given the high rate of divorce and the great value people place on their material assets, it seems to be only common sense to protect one’s piled-up wealth against unforeseen (but not uncommon) outcomes.

    I think the lines from Congreve more than 300 years ago show this is not a modern phenomenon:

    “Thus grief still treads upon the heels of pleasure;
    Married in haste, we may repent at leisure.”

    For those of us with less wealth — or more willing to give all we have to the one we love — an agreement that allows us to keep our pajamas and toothbrush is probably unnecessary. If we went into a marriage for love (the kind that wishes the other well, not the kind that wishes to own and consume the other), we would have no problem giving all we have, and might only wish it were more.

    Nevertheless, the real world shows us that marriages may be made to fulfill a selfish desire — and such selfish desire might often tempt one to marry a rich old man/woman or a beautiful young woman/man for one’s own pleasure. When the pleasure ends, it might be nice to have the piled-up wealth to fall back on.

    • Swanky

      But your position merely advocates a further weakening of the marriage ideal for the sake of those that make foolish, reckless choices. Let them deal with them, I say. Society has a stake in the survival of marriage, just as it has a stake in the transportation system or anything else of value to a well-ordered society. We don’t do away with a ticket requirement just because some cheaters don’t pay their fare.

  • Kitty MLB

    Prenups are horrendous.
    Admittedly in the past and in some cultures today marriage is seen
    as a contract – I shall rattle on now please excuse me.
    Cultures as we know used marriage as a way of social control,
    royalty married to preserve dynasties, the aristocracy chose
    partners that were ‘ suitable’ and the poor chose marriage for practical
    Yet most of that leaves me quite cold, like prenups,
    I have just been reading Virgil a poem about love and trust and then
    I read this coldness which chills the soul.
    Yet I admit unsuitable people do marry, they do not accept the seriousness
    of marriage and have commitment issues, but that has nothing to do
    with the actual subject.
    There are duplicitous people in this world but this is not the answer.

    • Swanky


    • DrCoxon

      Virgil – Aeneid IV is about love and betrayal.

      When I buy a house and take out fire insurance, the very last thing that I want is a fire (unless I am a criminal). Mutatis mutandis, a prenuptial agreement.
      In France the dual nature of marriage is more obvious – the civil and the religious ceremonies are distinct. Why can the pre-nuptial contract not be seen as part of the civil union, the sacramental union for life the expression of the religious?

    • balance_and_reason

      Beautiful sentiments and fully agreed, but you still need a fair system of family/divorce courts when the relationships fail. This is not the case, so we need a change.

  • Swanky

    I agree about the pre-nup’s showing bad faith up front, but in point of fact not everyone says ’till death do us part’. Or even ’till death us do part’, which is more elegant. I didn’t, for one. The ceremony, such as it was (register office) stopped after ‘do you take [name]?’ We said we did, and that was the end of it.

  • StephanieJCW

    If divorce laws were fairer you’d have a point. But as they aren’t – and your partner can ditch you fairly easily – a pre-nup to protect pre-marital assets makes sense.

    And unless you see marriage as a career choice, why would a pre-nup bother you?

    • Swanky

      Odd comment. Why would someone see marriage as a ‘career choice’ rather than, first and foremost and essentially, as a marriage? Marriage colours and binds up every aspect of one’s existence. I’ve been married for two decades so I know how very true this is — and it only gets truer with time!

      • StephanieJCW

        Why is it an odd comment? You not unaware of the concept of ‘gold diggers’?

        • Swanky

          I answered in my reply to you above.

    • Kitty MLB

      Because it removes joy, trust , sparkle.
      Its cold as well as remote. When you marry you hope it will be forever,
      you do not start married life thinking it will end.
      If you think that then you are marrying the wrong person
      and visa versa.

      • StephanieJCW

        It doesn’t do any of these things. With the greatest of respect marriages end. Frequently. Nobody who divorces thought they would, at the time they married. I see no issue with signing one. It’s presumed you will never need it. Refusing to suggests gold digging intentions imho.

        • Swanky

          Your idea that ‘refusing’ to sign a divorce settlement ‘suggests gold digging intentions’ is a rather nasty one. If *I* had insisted on such a thing, my husband would have been very distressed about the implications and, knowing him, would have withdrawn his proposal until or unless I felt confident enough to marry. I don’t wish to speak of myself except as an example that I believe to be true of countless millions.

          To the contrary, an eagle eye to the settlement suggests that the gold-diggers of either secks that you are so worried about are looking to make sure that they will indeed get their cut. It’s vulgar and calculating and against the spirit of marriage, any way you slice it.

          • StephanieJCW

            It’s not a nasty one – it’s an accurate one. Having frank discussions about things such as finances, children, family interactions, work split etc is a sensible thing to do.

            Having a frank discussion about what would happen should the worse happen (divorce) is a sensible thing to do. A large % of marriages fail. Acknowledging that doesn’t make a marriage more likely to fail, anymore than purchasing insurance makes my house more likely to burn down.

            If you didn’t wish to sign a pre-nup, then essentially you are making it fairly clearly to your partner that a large part of your interest in them is financial.

            Although as I said, if divorce settlements were more sensible, and it wasn’t possible to treat marriage as a career option and route to wealth, then maybe pre-nups wouldn’t be necessary.

            • Swanky

              It’s a good argument but I’m not convinced by it. I think you’re arguing towards a conclusion that is actually the premise — that marriage involves the whole of life, and that includes finances and material goods. You’re turning something that has been understood and embraced forever as some creepy distortion. It isn’t. And everyone knows that marriages can end in divorce (I happen to think that’s healthy for the marriage by the way: taking someone for granted is bad news). But making provision for it in that manner is actually making the temptation to split more likely, not less.

              I remember reading once a report of a study of couples that were considering splitting up. The couples were followed to see whether they did or did not, and of the ones that didn’t, whether they regretted their decision. The ones that didn’t were glad five years later that they stuck it out. There had to be reasons to stick it out. Laying out the red carpet for divorce would not have been helpful, and like Fergie and Andrew, they may in time have regretted the split.

              As for ‘marriages fail’, no, they don’t, really. People abandon them. Marriages don’t fall apart by themselves. A marriage is simply two people (I hope it remains that way!) deciding to stay together. They need supports in order to do that, whatever those supports are. In the beginning, the support is usually a ceremony. But children are also a support and so is the marital wealth. There’s no shame in that: quite the contrary.

            • nehaaldon

              Yes I agree with you, its good to clear the things before getting married with your partner but apart of that It will sometime give bad impact on married life.

              Marriage not means to only share financial disputes but also for to share your each every phase of your life with your partner. If we start married life by having the negative thoughts like “what happen if we divorce” ” what to do if marriage not gonna work” .

              Start married life with the thought that you are two bodies and one heart. This gonna work :)

      • balance_and_reason

        Not as cold as the eyes of serial gold digger

      • BDJ

        Hogwash! Pure feminine bunk.

        One wouldn’t dream of owning a home without adequate insurance against “the possibility”. One wouldn’t drive a car without adequate insurance against “the possibility”. One wouldn’t jump out of a perfectly good airplane without a parachute.

        It’s marriage insurance. Nothing more. One is insuring against “the possibility”.

        Only a woman would say it damages anything or erodes anything…because they typically don’t get to sink their claws in during a divorce if a prenup is present.

        It’s marriage insurance. Plain and simple.

  • Magnolia

    I don’t agree. Prenups might stop the predatory element to marriage where one party finds the other more ‘attractive’ because of their wealth.
    I am very lucky in that spouse and I started out together with nothing and we made our limited wealth ourselves and shared it as we went along.
    Prenups would render the couple more ‘equal’ from the start because they would have to make their marriage work in wealth terms for the two of them as their marriage progresses rather than to just depend on what they already have.
    Windfalls would still present a challenge but they always do.
    Marriage should be for ever but who really knows their spouse or what life will throw at them when they get married?

    • Swanky

      Who knows anything about anything in the future? That’s hardly a reason to throw a dart at it in advance. McDonagh is making the excellent case that the time to really think about the ifs and whats is in the beginning, *before* the commitment. Then again, the future is and will remain full of unknowns — known unknowns and unknown unknowns, as the American said. In the end, I’m not sure there is really a preparation for marriage, any more than there is preparation for being yourself at 25, 45, 65, 85. You can’t know what it will be like until you get there.

      • balance_and_reason

        Its easy to argue for the case of no change when you are in the section that benefits from no change.

  • JohnM

    Once upon a time the priest would council the couple who intended to get married to instil upon them the seriousness of the commitment. This would include the consequences that would transpire should either party fail to take the marriage seriously.

    Let me make a suggestion. Let the church offer it’s advice that marriage is a sacred and binding commitment, but let it also draw up a pre-nupt agreement that would draw stark attention to the consequences should this marriage fail. Would this not offer some continuity? Does not advice concerning marriage inevitably concern the consequences of its failure.

    Are people so immature that raising the possibility of failure makes that failure more certain?

    • Swanky

      But nobody can know all the consequences — or even the most severe ones — should the marriage fail. Nobody knows either what will cause the marriage to fail, if in fact it does. I don’t think, from my long experience of the matter, that marriages do in fact ‘fail’. I think that people by and large wilfully give up on them. It’s not the same thing.

  • Christian

    Pre-nups turn marriage into a private contract on the terms agreed between those getting married. Ought to appeal to people trying to rid society of bureaucratic nannying.

    • Swanky

      Again (as I’ve replied to others besides you), not all of the ‘terms’ of marriage can be known to the people involved until they are in the marriage and have lived with it for some time. Marriage is not a plain that can be viewed with binoculars from a distance; it’s more like a cavern with sub-caves that have to be explored — and you don’t possess the full cavern until you explore them. In that sense, marriage isn’t a state so much as a lifelong project.

  • OLO101

    Prenups should be mandated before all marriages. They should be automatic with the option to opt out–not the other way around.

    • Swanky

      How generous of you to allow for an opting out!

      • OLO101

        Not having a prenup is a strong indicator that one party is looking to scam the other.

        • Swanky

          Rubbish! — and I think, it shows on the contrary a calculating view of the material aspects of marriage. See my reply to Stephanie above if you like.

          • OLO101

            As another poster mentioned, you have never experienced the destructive force known as “a gold digger.” Prenups are needed for protection. If someone won’t sign one–run for the hills.

    • Kitty MLB

      Opt out, rather like buying a gadget, perhaps you should have
      6 months trial period and sell the hubby or wife in ebay.

  • rtj1211

    And a scheming little bitch who sees a much larger pot coming into the marriage from the other side is no danger either, I suppose??

    • Swanky

      I don’t get your point, but you don’t sound like marriage material.

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