Is Modern Marriage a Bargain? Exploring Perceptions of Prenuptial Agreements in England and Wales
Child and Family Law Quarterly, Vol. 24, No. 3, pp. 304-319, 2012
Posted: 7 Jun 2013
Date Written: June 5, 2013
Drawing on data from a recent national and follow-up study exploring attitudes towards binding prenuptial agreements at a time when the Law Commission was considering law reform, this article considers what might be gained and lost in family law terms by their introduction. Looking at the tensions between providing autonomy to agree arrangements at the outset of a marriage and achieving fairness between the parties at the point of divorce, questions were framed in the study to consider views on the socio-legal and psychological issues surrounding a move towards making prenuptial agreements binding. In particular, it explored whether we are ready culturally to use prenuptial agreements and any perceived limit to their acceptability. In addition, were there situations where prenuptial agreements were considered more or less appropriate for those entering marriage? How might they affect the commitment involved in marriage? More generally, in the light of the study’s findings, the article examines the implications of a legal and moral shift away from a paternalistic court redistribution of assets at the point of divorce towards an approach based on enforcement of a premaritally determined private contract, and concludes by considering what sort of a bargain it would be acceptable for modern marriage to become.
Keywords: child law, family law, marriage, prenuptial agreements, divorce
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