THE IMPORTANCE OF MARRIAGE. PRE-NUPTIAL AGREEMENTS AND TIME FOR CHANGE by Luke Smith

Views of marriage as an emblem of continuity and solidarity are slowly fading into the abyss. Modernisation is needed if marriage is to remain an integral part of family law, and the controversial nature of the ‘pre-nuptial agreement’ may have answered that call. Today, the idea of the ‘family’ as a monolithic notion has been replaced with the assumption that families are fluid and adaptable. Contemporary families are inclusive of single parent families, blended families, step-families and homosexual families to name a few, highlighting
that the evolution of traditional marriage is constantly changing throughout society.

Marriage: Sacrilegious Status or Calculable Contract?

What does the law fear in giving partners private autonomy when it comes to their marriage? This question remains largely unanswerable; however there are explanations for such reluctance towards marriage contracts.  Radical change in the relations between men and women, alongside the bewildering choice of occupations and life-styles leads to a very individualistic society, often leading to marriage breakdown. People are now marrying at an older age and the rate of marriage is dropping. More strikingly, in 2008, 37% of marriages were second or further marriages for at least one of the parties. It is the latter fact which calls for marital agreements to deal a mature card on the table of unforeseeable turmoil.  Although marriage is theoretically the desired status in society, in reality many will be reluctant to marry if their children or any part of their family estate may be at risk through any potential future breakdown. Herein lays the breakthrough for a contractarian approach towards marriage.

The Breakthrough for Marital Agreements: A ‘Victory for Love’?

The Radmacher ruling, labeled somewhat controversially as a ‘victory for love’ by the successful wife, highlights the potential for the courts to give the ‘green light’ in enforcing pre-nuptial agreements. At the heart of the majority approach in Radmacher is an appeal for autonomy, which has long been sought after. This autonomous view gives parties an element of ‘respect’, yet the court failed to recognise that relationships are unpredictable and messy. Enforcing pre-nuptial agreements in this sense clearly ignores today’s realities of intimate relationships in our modernistic society. Promisingly, following Radmacher, the substantive evaluation of a marital agreement is all about ‘fairness’, which strikes a better note. However, what is to be considered fair remains in the eye of the beholder. Was it fair to assume Mr. Granatino being a wealthy banker, with ample opportunity to seek legal advice before signing on the dotted line, understood the terms of the agreement and therefore be bound by them? What is clear is that if pre-nuptial agreements are to flourish, we need a touchstone against which to measure fairness, which will invariably only gain weight once given expert parliamentarian backing.

The Value of Dissent: A ‘Gendered Dimension’?

In a powerful dissenting opinion, Lady Hale commented that the object of a pre-nup was invariably “…to deny the economically weaker spouse the provision to which she… would otherwise be entitled”. In hindsight, she was correct. It cannot be said she would sign up to a pre-determined agreement that failed to include such maternal vitalities of family life. Was it right therefore, that the panel of the Supreme Court be made up of eight men and just one woman? Clearly, reminiscent of Hale’s views, this judgment cannot provide a ‘hard and fast’ rule in allowing ‘pre-nups’ to form a binding contract in all cases. Rightly, reform must come through Parliament in partnership with the Law Commission. This would facilitate an engagement with the potentially overlooked ‘gender recognition’, whilst embracing a ‘real’ societal element of fairness in regulating separation of marriage.

The Future of Marital Agreements

Marital agreements giving effect to party autonomy certainly correlate to modern movements in family law, and it is likely that fluctuating marriage statistics will enhance the need for more pre-nuptial agreements to be concluded considering the costs and uncertainties of divorce, especially after Radmacher's wake. However, reliance alone on the court’s application of fairness, quite frankly, has proven ill-gendered and cannot provide adequate protection to parties who are unsure whether their marital agreement will ‘stick’. In the absence of statutory reform, the best a solicitor can say of a marital agreement is that it will probably work, but why should this be the case? When preparing for take-off, would you feel cautious about flying on a plane that provided no safety instructions if it were to crash? Many would, and ‘pre-nups’ are the same, why should planning ahead for divorce which is becoming more common, be frowned upon by traditionalist notions of love and trust? Such meaningful advances herald the call for parties to take the limelight when embracing their own future’s, embedded by the strong sacrilegious status of marriage.