Making All Prenuptial Agreements Binding Sends Wrong Signal

Mal Fletcher

Posted on: Tuesday 19 October 2010

This week, Britain’s most senior judges will decide whether divorcing couples should be held to prenuptial agreements regarding the division of their assets.

If Britain decides to fall in line with the judicial policy of many of its European partners and make all prenups binding, it will be another sad day for the state of matrimony.

Call me naïve if you will – I’ve been called worse – but wouldn’t it be wonderful if people married on the basis of good old-fashioned trust? Trust and real love are inseparable, after all.

Yes, people often marry on the basis of romance or sexual desire, both of which are dubbed ‘love’ in pop culture. Yet the love that really ‘makes the world go round’ is different. It is based on mutual commitment, a conscious choice to do what is in the other’s best interests, even if that costs me something dear.

In some ways, this love is more fragile than romance because it is based on giving the other person the benefit of the doubt to the nth degree. Love is not blind, but it does choose to ignore individual foibles in a partner, in order to accept the package as a whole.

Yes, marriages built on trust do sometimes breakdown. But is an abuse in some cases good enough reason to encourage everyone to anticipate the worst, right from the start?

If they become a central part of divorce settlements, rather than a side issue as they are at present, prenuptial agreements will cease to be the preserve of the rich.

Prenups will become a form of income or asset insurance for people who have far less in the bank, but are just as anxious to protect what they own. Marriage will become even more of a financial and legal contract than it is today.

Marriage is recognized by law, but it is not primarily something legal. It is, dare I say it, more mystical or even spiritual than that.

This is why most divorces hurt people so badly. Except perhaps in cases where there’s been sustained physical or psychological abuse, divorce feels for many like a part of their soul has been ripped away.

Because it is more than a legal contract, marriage provides children and adults alike with stability, strength and continuity – emotionally and financially.

We might as well take the bride and groom aside on their wedding day and say, ‘Look, there’s a pretty good chance this is all going to end in tears. So we want you to take out this insurance against the day when it falls apart.’

Politicians are finally starting to see divorce as a social ill, rather than just a logical corollary of a liberal and enlightened society. If anything remotely approaching a ‘Big Society’ ideal is to take hold, if people really are going to bond together in local communities, marriage will need to remain a cornerstone institution.

Making all prenuptial agreements binding would send all the wrong signals.


Q: Do you think all prenups should be considered binding and if they are what impact will that have on marriages? I'd love your comments (below)...