Prenups to be made binding?

(122 Posts)

Here

It sounds like a great idea in practice, give people more control yada yada. But what worries me is the way that inequality in a relationship is often not apparent until the couple have children. And then suddenly, the woman is financially more dependent (at least for a while) and probably taking on more domestic responsibility as well. We also know that young women don't realise this until it happens.

So what I can foresee is lots of young couples making what seem like very fair and equal agreements which then turn out to be enormously unfair when circumstances change, with a systematic bias against women who've had children sad.

NiceTabard Thu 27-Feb-14 19:29:48

I think they need to be very very careful.

They say that controls are built in so that the financial needs of both people and children are met. As long as that is true, then maybe OK.

I guess all really unscrupulous people need to do is not get married? Then on splitting up there is no financial settlement.

LurcioLovesFrankie Thu 27-Feb-14 19:47:24

Buffy - that's exactly what I thought when I read it. There needs to be some built-in method of assessing lost earnings/ promotion/ pension contributions where one partner has given up work/worked part time while children are small. And I absolutely agree that a lot of women will agree to what look like equitable arrangements without thinking this through (you see it over and over again on threads about "common law marriage" - i.e non-existent common law marriage: women who didn't realise till the shit hit the fan that they had no legal protection whatsoever).

eurochick Thu 27-Feb-14 19:53:05

Well anyone taking legal advice before entering into one (as they should be and I believe will be required to be under what is proposed) would be advised to build in something for contingencies such as you describe. And as I understand it the proposed law will ensure that the prenup will not kick in if the parties' needs are not met and children not provided for.

I think they are a good thing. I brought considerably more financially to this marriage than my husband. A prenup would have given me protection in the event of us splitting up. I have seen some people I know (male and female) get royally screwed in the event of divorce. At least this would give the courts a steer as to what was intended before things turned acrimonious.

But…

I can't help thinking that in the majority of cases (clearly your circumstances represent an exception Euro) the women will be systematically disadvantaged. And will they and their legal representatives even realise this upfront?

How many threads have we seen on this board where women are royally offended at the merest hint that there is still a problem with inequality. How many of us here would have denied with our last breath that we are subject to systematic disadvantage before it happened to us?

I myself would have thought a "what you bring in you take out" style of agreement would have been eminently fair before I had children and experienced the discrimination that brings to many women in terms of financial independence.

I just think I lot of 20 something women are going to get royally screwed by this, just because they are women. sad

thecatfromjapan Thu 27-Feb-14 20:15:39

Totally agree with Buffy on this.

Incidentally, I thought that the idea is that there won't be a push towards legal advice (prior to drawing up a pre-nup) - mainly because, with legal aid gone, most people can't afford it and there seems to be a general moving away from intervention by legal representatives (what with 'mediation' in divorce, etc.). The report I heard on the radio seemed to be talking about examples of on-line algorithms that people could access to draw up their pre-nups, and countries where this was common. <shudder>

thecatfromjapan Thu 27-Feb-14 20:18:18

Actually, I'm just going to re-state part of what you've said, buffy, for emphasis: I really believe that, for the majority of women, having children brings about a linked set of inequalities in a marriage/partnership that are unimagined by most women before it happens. I was a feminist (am still a feminist!) and had researched this area - and I was still shocked when it happened to me.

olathelawyer05 Thu 27-Feb-14 22:24:34

"...I guess all really unscrupulous people need to do is not get married? Then on splitting up there is no financial settlement."

Why would it be "unscrupulous" to not get married? I mean, it's not as though you could trick someone into NOT being married to you is it?

You start off a relationship in a situation of non-marriage (if you will) and so it is what it is - everyone know where they stand.

If I may speculate out loud for a moment, I suspect what you are really trying to say is that: Men (yes, I think you're probably directing it at men...) who don't 'man-up' (throw in a shaming attempt for good effect...) and marry their girlfriends when their girlfriends fall pregnant or otherwise want to get married, are inherently unscrupulous, as though they somehow tricked their girlfriends into not being married.

Of course I'm just speculating out loud there.

80sMum Thu 27-Feb-14 22:31:39

I have never liked the idea of pre-nups. Surely the whole purpose of marriage is that two become one? A pre-nup tries to perpetuate the couple's separateness. So, what's the point of getting married, in that case?

LurcioLovesFrankie Thu 27-Feb-14 23:40:12

I agree Ola, that there's nothing unscrupulous in someone saying they won't get married. People of both sexes can be against marriage for all sorts of reasons - seeing it as loaded with religious overtones they don't buy into, seeing it as a hangover from women being treated as property, having lost faith in it when young because they saw their parents divorce (to list just some of the reasons friends of mine have given for being against marriage).

What there is (and this is not the fault of the individual person with qualms about marriage) is a massive misunderstanding fostered by popular culture that there is such a thing as "common law marriage" which means that people find themselves with a LTR splitting up where maybe they've paid into the mortgage without being on the deeds, or paid for house improvements, or gone part time/given up work and shafted their career - then find there is no legal mechanism to compensate for the fact that they are, financially speaking, royally shafted. This is of course bloody foolish of them... but we live in a culture where the popular press bang on about "common law marriage", so unless they've seen this happen to someone, it quite frequently comes as a horrible shock.

And my worry is that pre-nups may extend this to marriage - because what in effect it does is invite people to take a "well we'll just take out of the marriage the assets we took into it, that's fair, isn't it" attitude, before they've actually been married and realised that the whole point is that marriage involves a whole set of compromises - one partner moving to be near the other one's career, going PT when having children, giving up promotion chances because of children, losing out on pension contributions through going PT - that just may not occur to people when drawing up the pre-nup.

ArtetasSwollenAnkle Thu 27-Feb-14 23:54:46

But unless they take away the option of marriage without a pre-nup, why can't people just carry on as they do now? Don't get married, co-habit; or get married, have a pre-nip; or get married, no pre-nup. Choose what suits you best. Are they to become compulsory? I have never liked the idea of them anyway. If you feel one to be necessary, why get married?

FloraFox Fri 28-Feb-14 00:27:56

I'm generally a bit meh about pre-nups on the premise that they are typically used for rich couples where they are fighting over millions of pounds. I wouldn't like to see them becoming wide-spread among ordinary folks for the same reasons as Buffy. I've seen lots of women who start off relationships with what looks like a fair arrangement (e.g. both contribute x to the communal pot and keep the rest for themselves). After the children come along, the woman usually has less income and often ends up spending her money on the kids while the man's income rises. Sometimes the man is off golfing and buying new clothes while she is cutting her own hair at home.

I think this is one of those issues where laws have been developed for the benefit of women (spousal support) but end up contributing to keeping women in a position of dependence. I don't like that so many women are still dependent on their husband's financially. My granny told my DM she must always be financially independent and my DM told me the same thing. I will tell my DD the same.

I could support pre-nups if the judge could take into account loss of earning power, impact of children etc. in determining whether each partner's financial needs are met. That would probably mean pre-nups are pointless for most people as there wouldn't be anything left over. If there are millions left over to fight about, I wouldn't object to a pre-nup being used to figure out what to do with it.

NiceTabard Fri 28-Feb-14 00:48:13

""...I guess all really unscrupulous people need to do is not get married? Then on splitting up there is no financial settlement."

Why would it be "unscrupulous" to not get married? I mean, it's not as though you could trick someone into NOT being married to you is it?"

Erm it's quite easy to not get married to someone. Really.

I am interested in the re-interpretation of my point, which was, if you are unscrupulous, this is a way to protect your assets

Being translated into, unmarried people are unscrupulous...

!!

You need to have a chat about a job in reframing in certain religious right-wing US states grin I am sure you would find a place there.

whatdoesittake48 Fri 28-Feb-14 11:14:13

Why doesn't the law simply provide the structure for fairness? Why do we need to sign away our rights to the legal process? because the law is unfair and not suited to today's lifestyles.

it takes little account of partnerships, takes no account of what is brought into the marriage by each partner and does little to reflect subsequent marriages.

Change the legal structure and maybe prenups won't be required or used against the weaker partner

MajorGrinch Fri 28-Feb-14 12:04:12

I guess all really unscrupulous people need to do is not get married? Then on splitting up there is no financial settlement.

I think some people are misreading this - I read it as "pre-nups are only binding if you get married, if you don't want to have a fair settlement when you split, don't get married", so rather than saying it's unscrupulous to not get married, NiceTabard was saying that not getting married is an easy way to get around pre-nups.....

Is that right Nice?

MajorGrinch Fri 28-Feb-14 12:05:02

Sorry - just seen your post Nice (must put glasses on)...

I read nice's first post that way.

I suspect though that there are some posters who are rather keen to see the words of feminist posters in a way that reinforces their own conceptions of what feminists thing, rather than reading them as they are intended.

Which, y'know, is always very welcome hmm

thing? I meant think

Beatrixparty Fri 28-Feb-14 13:55:51

Whateverittakes

Why doesn't the law simply provide the structure for fairness?

That is what the law tries to do. This structure is set out in s.25 of the Matrimonial Causes Act 1973. Here

You ask for a change to the legal structure, what do you have in mind ?

Beatrixparty Fri 28-Feb-14 14:00:21

Re: Fairness, this is what was said in a high profile divorce case back in 2006, Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case

Trouble is exactly that with enforceable pre-nups. A woman's notion of fairness can (and often does) when she has children and experiences the discrimination that often accompanies this change in her status from person to mother for the first time.

Will prenups account for time out of the workplace, pension contributions lost etc, for the SAHP? Will it compensate for 'repetitional damage' (for want of a better term) when a woman starts to lose out on opportunities because of domestic responsibilities.

What would be an interesting social experiment would be to sign one of these 'fair' prenups, have children and then behave exactly as society seems to imagine a man should expect to. Just bugger off back to work after 2 weeks, leaving someone else to organise childcare and all that it entails.

Except shock shock shock shock won't someone think of the poor children? Well yes, they will, the wife who signed the 'fair' (at the time) prenup will, thus losing financial independence. Which is relatively fine unless things break down and her husband swans off having benefited from her free labour for however long.

Yep, well fair, that.

Beatrixparty Fri 28-Feb-14 14:54:59

I think one of the major appeals of prenups is that they wouldn't be fair.

ArtetasSwollenAnkle Fri 28-Feb-14 18:37:57

I read the article, and it makes some very interesting points;

1. They would enable married couples and civil partners to make a binding agreement about how their property or finances should be shared if their relationship breaks down
2. Qualifying nuptial agreements would give couples autonomy and control, and make the financial outcome of separation more predictable. We have built in safeguards to ensure that they cannot be used to impose hardship on either party, nor to escape responsibility for children or to burden the state.
3. As part of a package of measures, the Commission has also recommended that the Family Justice Council, the non-statutory advisory body made up of representatives from the family justice system, produces guidance on financial needs. Guidance would explain the outcome a judge would aim for in determining a settlement, including achieving eventual financial independence.
4. We believe that married couples and civil partners should have the power to decide their own financial arrangements, but should not be able to contract out of their responsibilities for each other's financial needs, or for their children.
5. But it is vital that any changes in this area must recognise that family law, and particularly divorce and separation settlements, are inherently complex - a couple with no children who is seeking to end their marriage or civil partnership after five years will have very different needs to those who have been married for 15 years with three children. So long as we avoid a one-size-fits-all approach to this area of the law and continue to recognise that every couple, and indeed family, is different, then I think these recommendations could potentially lead to a smoother and more cost effective separation process for many couples.

Now, without my feminist hat on, I read the bits in bold as the proposal recognising that a couple's financial commitment to each other over the years - such as giving up work - would be recognised. I have to assume from the comments here that others read it differently. So, how, and why?

olathelawyer05 Fri 28-Feb-14 19:16:30

"my point, which was, if you are unscrupulous, this is a way to protect your assets"

Right, so you were actually making a bit of a non-point as regards the issue of 'scruples'? - i.e. because ANYONE can protect their assets from a partner by not getting married, regardless of whether they are unscrupulous or not.

Which begs the questions: Why did you feel the need to refer to 'unscrupulous' people at all? What did this add to your point?

Had you said: ^''I guess all really unscrupulous people need to do is not get married? Then on splitting up there is no financial settlement.
"^, you would have been making the same point IYSWIM.

Surely, you must have been seeking to achieve something specific with the reference to "unscroupolous" people, otherwise we could just leave it out or replace it with anything: white, black, ginger, fat, ugly, worried.... etc?

You also emphasised 'really' in italics before unscrupulous, as if to suggest that it is something only really unscrupulous people would do.

You will agree that we can't use words, and then complain when others read meaning into the very words we have used.

A discourse analyst would have a field day with that!

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