If, as expected, the Law Commission proposal is to give greater legal weight to pre-nups signed freely, then I’m fine with that. You pays your money, you takes your choice.
But for the overwhelming majority of us, I can see no good reason to want to go within a million miles of a pre-nup.
The romantic conversation is hard to imagine for starters:
“Darling, I love you so much and want to spend the rest of my life with you”.
Drops to one knee.
“Will you marry me? And by the way, I need you to sign this, which says I get to keep most of what I’ve already earned”.
No, nor can I.
The message a pre-nup sends is “my money” is more important than “our commitment”. In other words, “I don’t love you” and “I don’t trust you”.
There may be situations where one person has a family inheritance or children from a previous marriage. But even in these cases, a trust does a better job because it releases ownership and sends a big signal about my willingness to sacrifice on behalf of others. Pre-nups retain ownership and send a big signal about me hanging on to what is mine.
Even if I were a massively overpaid footballer, wishing to protect my income from the risk of a short-lived marriage, I still couldn’t really say “If you love me, you’ll sign this”. It would be just as legitimate to get the reply “and if you love me, you won’t”.
Pre-nups put money before commitment.
Now I have to admit I can’t be 100% sure that pre-nups precipitate that which they are trying to avoid. I know of no study anywhere showing that pre-nups either help or hinder marriage. But if I were a social scientist making a prediction, my clear hypothesis would be that pre-nups increase the risk of divorce.
There are three reasons:
- Prenups make you think about divorce. One of the more robust findings in social science is that thoughts of divorce predict actual divorce. If you think about it, you’re more likely to do it. Pre-nups start from the possibility of divorce. When trouble hits, well, you’re already thinking about the exit and never really committed anyway.
- Prenups base the marriage on equity or fairness instead of a promise. This might sound reasonable but it’s not. Prenups turn marriage into a contract. If I do this, you will do that. That’s fair. But the problem with contracts is that they need to be monitored for fairness. That inevitably turns thoughts to unfairness. When life gets unfair, and your relationship is based on fairness, you’re more likely to split up. Marriage is supposed to be a promise to stick around for life. For better for worse.
- Finally, prenups remove one big need for sacrifice, which is especially key to men’s commitment. “What I have is yours, my darling, except for my money”. So that’s not really everything. So you haven’t really committed.
Making pre-nups more enforceable won’t remotely threaten or undermine marriage. They will undermine individual commitment. But I think so few people will either need one or dare to ask for one as a condition of marriage that they will never become the norm.
Pre-nups are only for the rich and the uncommitted.
I asked my wife what she would have said if I’d asked for a pre-nup when I proposed to her.
“Get stuffed”, she said.