Pre-Nuptial Agreements Should Be Banned

Should married couples be prevented from entering into pre-nuptial agreements to determine property division on separation?

Pre-Nuptial Agreements Should Be Banned
Yes because...

Pre-nuptial agreements can cause bitterness: given the element of unfairness in most agreements, it ...

Pre-nuptial agreements can cause bitterness: given the element of unfairness in most agreements, it is likely that one spouse will feel hard done by when the relationship ends. This leads to bitterness and resentment of the other spouse which is particularly problematic when agreements have to be made about custody of children.

No because...

Pre-nuptial agreements actually reduce bitterness: the absence of dispute over financial assets can speed up the divorce, reducing tension and benefiting both parties’ emotional states. Moreover, lengthy and arduous court battles over money are stressful for children, disrupting their development and schoolwork, for example.

Pre-Nuptial Agreements Should Be Banned
Yes because...

Pre-nuptial agreements undermine marriage as a relationship of equals: much of the meaning associate...

Pre-nuptial agreements undermine marriage as a relationship of equals: much of the meaning associated with marriage as an institution derives from the total commitment involved. When couples enter into marriage, they agree to share all that they have. This sharing of material wealth can be argued to be symbolic of the equal footing on which the parties enter the relationship. Equality within a marriage helps to ensure that both spouses can contribute to the decision-making process, generally leading to happier and more stable relationships. When parties to a marriage contract to ensure that the other cannot access their money, this equality is undermined. If one party has all of the assets and takes all important decisions, this can increase resentment, harming the marriage. If the state wants to maximise the happiness of individuals, increasing the chance that they are in relationships where they are treated as equals is important.

No because...

Pre-nuptial agreements allow people to feel secure when they enter marriage: the person with the higher level of assets can benefit from the feeling of assurance that the other is not marrying for money. They also benefit from the assurance that their assets have a measure of protection in case the marriage does not work. This is particularly important where assets include inherited property which has sentimental value or a family business which would have to be sold if the assets were to be divided equally. The party with fewer assets can also benefit from a prenuptial agreement because it spells out in advance what their financial settlement will include and offers them some assurance that they will be cared for if the marriage ends. Spouses who feel secure are more likely to have equal and happy relationships than those who remain suspicious of the other’s intentions. Moreover, banning pre-nuptial agreements may encourage couples to not marry in the first place, leaving the poorer half of the partnership even less protected than they would be with a pre-nup, and thus making the policy counter-productive.

Pre-Nuptial Agreements Should Be Banned
Yes because...

Pre-nuptial agreements are not fair for either party: couples who decide how their assets should be ...

Pre-nuptial agreements are not fair for either party: couples who decide how their assets should be divided on divorce before they are even married do not have adequate information to determine what will be fair in the future. Family circumstances can change considerably. For example, if one spouse gives up their career to raise children, an agreement that the spouses should keep their own earnings may no longer be fair. Also, an individual’s income can change dramatically over a period of ten years. We would not want to decide what job to take or where to go on holiday ten years in advance: changing circumstances or preferences may mean that the decision proves to be a bad one. Why should something as important as the division of assets on divorce be decided in such an uninformed way? Justice requires that the court determines what is a fair allocation of resources at the point of separation.

No because...

Pre-nuptial agreements are actually fairer for both parties: the individuals within a couple have access to greater information about their own needs and preferences and can better decide what is fair for themselves than the state. If, for example, one spouse is likely to inherit property from their parents, both parties may agree that it would be unfair for this to be divided equally. Most pre-nuptial agreements take into account the possibility of changing circumstances, such as the existence of children; spouses can amend the agreement as their marriage develops, should they so wish. In addition, divorce is often a long and emotional process during which spouses may feel considerable resentment towards each other. This anguish often results in lengthy conflict over the division of assets which may result in an outcome which is not necessarily fair: one spouse may relinquish some of his or her property in order to escape the conflict. It is better for the couple to reach an agreement when they still love each other and so are more likely to treat each other reasonably.

Pre-Nuptial Agreements Should Be Banned
Yes because...

It is justified for the state to intervene in this context: married couples have entered into a stat...

It is justified for the state to intervene in this context: married couples have entered into a state-endorsed relationship which provides advantages (both financially in terms of taxes and inheritance, and through recognition and validation). It is reasonable for the state to require something in return: namely, that assets are divided in a way which is fair. Furthermore, since no contracts are upheld in the state of nature, the state must be prior to the existence of contracts. It is thus legitimate for the state to choose not to recognise those contracts which it deems inappropriate.

No because...

Banning pre-nuptial agreements is illegitimate state activity: the state should remain neutral between all its citizens’ claims, and that responsibility requires it to endorse all contracts made between all people (subject to the absence of duress, misinformation, etc.). The argument that the state predates contracts and so can choose which ones to uphold is not persuasive. We would not think it legitimate if the state refused to endorse perfectly fair contracts between citizens because of their race or gender.

Pre-Nuptial Agreements Should Be Banned
Yes because...

Pre-nuptial agreements pose a serious risk of abuse: where one spouse is considerably richer there i...

Pre-nuptial agreements pose a serious risk of abuse: where one spouse is considerably richer there is a danger of the other being forced to sign a pre-nuptial agreement where it is not in their interests. The richer spouse will be in a considerably stronger bargaining position, undermining the likelihood of a fair agreement. Furthermore, pre-nuptial agreements are often signed shortly before marriage when parties may be keen to avoid conflict and so do not raise legitimate questions or concerns. If one spouse insists on such an agreement very shortly before the wedding, the other can feel under pressure to sign in order to ensure that the wedding goes ahead.

No because...

The risk of abuse can be minimised by requiring independent legal advice for both parties: if both parties have access to adequate advice regarding their own interests such risks can be overstated. The fact that a pre-nuptial agreement may not be as generous to one spouse as a court order does not mean that the spouse cannot validly consent to it or that it harms their interests. Spouses may feel that the minimisation of anguish during a divorce is sufficiently important to justify a smaller share of the assets. Moreover, we all make decisions that may not be in our best interests. My decision to go debating regularly may harm my degree. A decision to have unprotected sexual intercourse may result in undesired pregnancy. In order to have control over our own lives we have to make decisions for ourselves and the consequence of this may mean that our best interests are not always served.



Pre-Nuptial Agreements Should Be Banned

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