Keep Your Spouses Close and Your Prenups Closer: A Brief Look at Women’s Rights in Prenuptial Agreements

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Imbalanced Bargaining Positions Result in Imbalanced Bargains.

What are prenups?

There are very few areas of the law where gender discrimination is accepted because the victim has consented to the conduct. So why do we allow prenuptial agreements the chance to deny a spouse what is rightfully theirs, just because they have consented to it? Why are women so adversely affected by this practice?

Prenuptial agreements, commonly known as prenups, are a common source of controversy in the world of family law. For clarification, a prenup is a document that both spouses sign prior to getting married to set out their financial liabilities in the event of their divorce.

Man and Women Holding Hands lovingly
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They are often used by couples where one or both spouses have significant amounts of wealth. Lady Hale, the former president of the Supreme Court, has described the concept of a prenup as a way to deny the economically weaker spouse the provisions which they would otherwise be entitled to by law. In other words, the concept of denying someone what they would be legally entitled to, especially when they may already be the financially weaker spouse, is unfair.

How are prenups treated by the court?

The law regarding prenups was clarified in the recent case of Radmacher v Granatino. The overruling majority decided to give effect to prenups that are freely entered into by each spouse, with full appreciation of its implications unless it would not be fair to do so.

However, Lady Hale, the only judge that disagreed, approached the case by firstly assuming that the agreement was unfair. She also asked whether the parties freely entered into the agreement, intending it to have legal effect and with a full appreciation of its implications. If they did, only then should the court ask whether it would be fair to hold them to their agreement. This approach was not accepted by the majority.

Why should women be concerned?

By upholding the agreement, it is arguable that the majority judgement didn’t take into account the contextual factors surrounding the signing of a prenup – many of which adversely affect women. As the law favoured the richer of the two spouses, it has caused concern that women, who are statistically more likely to be the financially weaker spouse in a marriage, will be less likely to retain any of their husband’s wealth, despite their non-financial contributions to family life.

Housewives and women who earn significantly less than their husbands are therefore more likely to have weaker bargaining positions in the divorce process and will leave a marriage with limited financial provisions compared to their financially wealthy spouses.

This article by no means generalises women, but instead aims to recognise the contextual factors that often limit the earning potential of women, such as the gender pay gap and the likelihood of a wife becoming a ‘stay-at-home’ mum after having children.

A lower income puts women at an automatic disadvantage when their husband requests a prenuptial agreement, often when they are aware that the marriage will not go ahead without their agreement.

Some feminist critics have even argued that the existence of the patriarchal society means it it impossible for a woman to have the freedom to sign such a contract of her own free will.

Heart in the sand
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Whether or not you choose to recognise these contextual factors as relevant to a woman’s signature on a prenup, we can agree that imbalanced bargaining positions result in imbalanced bargains. It is unrealistic to believe that the gendered cycle of financial inequality is not encouraged by prenups.

Currently to detriment one spouse for the benefit of the other is and will continue to be the aim of the game. If the courts adopted a system similar to Lady Hale’s proposal, where prenups were presumed unfair unless proven otherwise, then this would work towards levelling the current uneven playing field by ensuring the law reflects the reality of women, affording them better financial protection in the event of a divorce.

By Elin Short


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