Pre-nuptial agreements should not be recognised in divorce courts
Last updated: March 2, 2017
No introduction at present. Why not write one?
Prenuptial agreements should not be recognized in divorce courts
Prenuptial Agreements are a contract that the couples sign before marriage and abide for both of them in case they divorce, contemplating distribution of assets, as they can limit and decide upon alimony of the couple and other decisions. Prenuptial agreements are only valid if they are validated before marriage.
They can decide upon (including eliminate) your rights on probate homestead, administration of the spouse's estate, wills and other possible determinations. However, child custody cannot be regulated by prenuptial agreements, neither visitation rights and child support and this decisions. They are to be taken by the court's decisions during a divorce. [[http://www.onlinelawyersource.com/divorce/family-law/prenuptial/index.html]]
Maybe the fact that the children are the most important part of a marriage and so, their future cannot be decided by agreements taken by people that are under influence of strong feelings (subjectivity) but by judges' criteria that are far more objective than a contract that is written"to never happen" the reason why they cannot be contemplated in prenuptial agreements? Surely it is the case.
And the case we will prove you during this debate is the fact that prenuptial agreements are not trustworthy contracts; are driven my emotions rather than reason, remain under unpredictability and unfairness, thus the whole decisions of a divorce should be taken by the court's judges during a divorce process, ignoring any agreement taken by prenuptial agreements.
Pre-nups have strict legal criteria they have to abide by:
1. agreement must be in writing (oral pre-nups are always prohibited);
2. must be executed voluntarily;
3. full and/or fair disclosure at the time of execution;
4. the agreement cannot be unconscionable;
5. it must be executed by both parties "in the manner required for a deed to be recorded", known as an acknowledgment, before a notary public. [[http://en.wikipedia.org/wiki/Prenuptial_agreement]]
It is unfounded to say that those contracts are taken too lightly or at the heat of the moment. Those contracts are prepared and written by a solicitor, who is an objective 3rd party. This is the guarantee that the contract will be fair and serious. Even if the solicitor, for some reason, is not an objective 3rd party, then both participants of the pre-nuptial agreement have the possibility to present the agreement to a 4th, 5th, 6th etc. attorney if they have any doubts about the agreement.
"Parties must wait seven days after the premarital agreement is first presented for review before they sign it, but there is no requirement that this be done a certain number of days prior to the marriage and prenups often take months to negotiate." [[http://en.wikipedia.org/wiki/Prenuptial_agreement]] One would struggle to imagine how such a process could be undergone lightly and without considering all the ramifications of the agreement.
Moreover, in order for a pre-nup to be recognisable in a court both parties must have a lawyer present to verify the validity of the contract and in some cases, the parties retain a private judge to be present during the signing, to be sure that neither party has been coerced into the agreement [[http://en.wikipedia.org/wiki/Prenuptial_agreement]]. This insures that the agreement is indeed fair and reasonable.
Concerning children: we, the opposition, agree that children are an important part of a marriage and, in fact, most pre-nups are drafted in a way so as to take the birth of children into account. When one spouse has decided to devote a bigger share of his/her time and effort in raising children, the pre-nup can be altered accordingly or may simply expire with a "Sunset provision" [[http://en.wikipedia.org/wiki/Sunset_provision]]: in Maine, the agreement will automatically lapse after the birth of a child, unless the parties renew the agreement.
What we don't agree with is that the fact that pre-nups cannot hold custody of the child doesn't mean that they shouldn't hold for other things such as wealth division. Children are individuals and the state has a duty toward them, the parents cannot be free to treat their child in any way they want. However in other areas the couple should be granted the liberty to agree on the terms of divorce, because they are grown individuals and are responsible for their own decisions.
Again and again, the opposition raises the issue of fairness. pre-nups are by definition fair, as they are the couple’s own terms and not those determined by the courts. The following points also deserve review. 1. To prove that only the related parties are effected: child custody cannot be regulated by prenuptial agreements. 2. To prove that the argument of changing circumstances is not justified: Pre-nuptial agreements take into account the possibility of changing circumstances (such as the birth of children) by allowing amendments. 3. To prove that pna’s are not the result of arbitrary emotional decisions: pre-nups are standardized. To the contrary, post-nuptial agreements are logically more likely to be influenced by resentment.
The opposition has provided many superfluous and irrelevant opinions about the philosophy of love ect.; in truth, their most convincing arguments are 1) societal damage (although pre-nups are fair, individuals cannot be trusted with the freedom to make their own decisions because they can become a nuisance to the state and by extension to other citizens when one of the parties is harmed by the contract) and 2) contract abuse (in which one of the parties is uniformed and is incapable of adequately and intelligently representing one’s own interests in the contract. clearly, no contract is immune to abuse, and this is more related to the nuances of the law, not the nature of its philosophy). Most importantly however, it is not even relevant whether pre-nups are fair or not – the oppositions argument is nullified by the courts’ duty to honor the decisions of responsible adults deciding their own future in a democratic society that should honored those respectable wishes. The state should remain neutral between all its citizens’ claims. This means that all contracts formed between its citizens must be respected and honoured. Pre-nups are not an exception.
Prenuptial agreements are either too lovely or not as lovely as they appear
The fact that the prenuptial agreements exist is so laughable that the TV show "The Simpsons" couldn't have left this issue behind and created episode 213 recalling a close resemblance. During that episode, Ned and Homer go to Las Vegas and after a night of alcohol, they wake up with the surprise that they have new wives that are interested in nothing but money. This episode became an Emmy nominee[[http://www.infoplease.com/ipa/A0778932.html]] and then this wives would appear in a later show (Episode 276) claiming their marriage obligations. They were finally terminated off-courts (in a tabern, in fact) and were turned over by other tools...But this is closer to us than what we think.
This satirizing TV show is the clear reflection of how prenuptial agreements work: Blindness. Either because of drugs, alcohol or mainly, love. As Sidney D. Craig Loving says, "feelings produce loving behavior"[[http://www.naturalchild.org/sidney_craig/feelings.html]]. This is directly related to our motion as most of the prenuptial agreements are taken on a moment of maximum love by the couple, since they are about to marry and think they have found the love of their lives. Maybe some months later you will notice the man or woman you married was not up to your expectations and you have to divorce him but at the moment of a prenup you won't know so, because love will drive your decisions; decisions that you will regret.
Prenuptial agreements are contracts that are made to never be used, since it is never the objective of couples to marry just to divorce and so, they are not totally serious and take some aspects too lightly. In any other case that one of the couple wants to marry just to create a prenup and divorce, then that is not even love and he/she just wants to take advantage from this unfair tool and abuse of the other member. We will adress this point later.
When you are in love you don't have the same perception and that gives the same effect of you not being under your full faculties, which is obviously, not able to take decisions.
Either because love controls the behavior or people try to gain advantage from prenuptial agreements is that this contracts are unfair and in the other way, the courts are objective and analytical, that prenuptial agreements should not be recognised in divorce courts.
In the second case, where pre-nuptial agreements are being used to cheat other people out of their assets, we find, that the other party is also protected firstly and mostly by their own attorney, who will point out the fact that his or her client is being treated unfairly.
Pre-nuptial agreements conditions differ from future reality
And now on to the main event: Why shouldn't pre-nuptial agreements be recognized in divorce courts? As we stated in our first entry, we shall demonstrate by the means of argumentation and analysis, showed so far, why it is always justice which must prevail on negotiation cases, specifically divorce procedures in this occasion. One of our points deals with the fact of having different realities at the time of creating the agreement and when executing it, being this the reason of abuses and unfair distributions of the assets. We shall proceed.
Let's focus on the moment of elaborating the agreement, what should be considered in order to create a document which gives an impression of at least a little fairness between the two spouses? First of all we know that most of the times this documents are made with the intention of protecting individual possessions, so we may infer that the ideal agreement is one in which both persons feel secure and confident, and because of this the first thing to be done should be the valuation of the goods from each of the spouses, in order to decide which ones are worth enough to be included in the contract. Now, since the very beginning of the process it is evident the criteria applied into it is highly susceptible to change, we all know that the value of economical goods changes with time, but of course this is not limited to that, each day experiences contribute to the constant formation of human thinking patterns, and thus their perspectives. [[http://www.rebt-uk.org/]]
For following with the line, the second step that is most commonly followed consists on thinking how does the agreement will affect the approaching compromise, this with the purpose of making clear what the limits of the one should be in order to contribute to the adequate development of the relation. It is here when the couple shall discuss what their expectatives and fears are, so that the final arrangement satisfies each of the spouses by including both of the interest and taking care of particularities and special conditions that may be present on it. Having done this the agreement may be almost complete, but it still reflects the ideology of the signers within a certain context and period of time, it does not ensures that this won't be susceptible of modification depending on the happenings in their lives.
What we want to highlight, is that the basis of the reasoning at the time of crating the agreement is determined by conditions that will hardly be repeated at the moment of carrying it out. Even when at the mentioned moment the spouses were to think about the future and try to identify what most probably will happen in the next few years, those suppositions would be determined by the same conditions of the instant. In other words, there is no guarantee for ensuring that what we want for our lives in 2009 will fit to our expectatives in 2015 or 2020 and so on, for obvious reasons the amount of information available about the future is extremely limited and absolutely unreliable. Having said this, and taking into account that a very important element of a complete and substantial decision is the information about the topic, we might infer that such a restrictive quantity of data makes it excessively risky to rely on it for taking one of life's most important elections.
For concluding, we would like to mention that although in modern days some couples tend to update their pre-nuptial agreements "adjusting to the changing environment" as the marriage develops, the fact of continually renewing them may bring a vague illusion of control over the desired possessions, but will never achieve to eradicate the uncertainty of predictions, and instead stimulate personal interests for molding the negotiations by acting in a stepped way. Having said this we would like to focus on the prevalence of justice in the courts and during the process, which we think is the main issue here.
One does not need knowledge of the future to draft a contract, that lays out the basics of a division of wealth, however big or small that wealth may be. The basic logic behind the proposition is that in different periods of time people value different things and that the value of things also changes over time. That is not an argument for not recognizing pre-nuptial ( or any ) agreements in the court. These agreements are created exactly because the future is uncertain. Pre-nuptial agreements are a sort of insurance policy. Insurance policies are created because the future is uncertain. Analogously, if one insures his or her house and then the house burns down, then the insurance company, who should pay the insurance of the house can not argue that the insurance policy is invalid because they didn't know that the house will burn down.
We would even go as so far as to argue that all of the decisions we make in life we make under the uncertainty about the future. These decisions may sometimes be wrong by objective standards, but they remain our decisions and they reflect what we consider to be right for us.
Pre-nup is a contract that reflects the consensus of the couple on what is fair, both parties need to agree for the contract to hold. Because of that pre-nups are fairer to both parties, as it considers the individual preferences and needs of the couple much more so than a court decision ever can. If, for instance, one spouse will inherit property from their parents, it would be fair to agree that the property should not be divided equally.
Furthermore, pre-nups can always be and often are also altered during the marriage to reflect the changing dynamic of the couple and their values, needs etc [[Can A Prenuptial Agreement Be Modified After Marriage? http://resources.lawinfo.com/cobrand/en/Legal-FAQs/Prenuptial-Agreements/Federal/can-a-prenuptial-agreement-be-modified-after.html?site=6abc%5D%5D . This insures that the pre-nup accurately reflects the situation the couple is in and provides a fairer division of wealth that any court can because the parties in a marriage have more information and a better notion what is fair for them.
Pre-nuptial agreements constitutes a serious chance of abuse
Our first point regarding the problem is that most of the times pre-nuptial agreements are signed under pressure or some kind of external influence, this as mentioned before is disguised constantly by temporal affectionateness, being this last one a powerful manipulative tool. Under the mentioned status, people is more likely to take imprudent decisions not considering the consequences that they might bring in a future time. For being concrete, the emotional value that some people assign to the agreement is the important factor for including not so clear and favorable conditions in the contract.[[http://family-law.lawyers.com/A-Study-About-Prenuptial-Agreements.html]]
Our second point states that economical differences between social classes constitutes a barrier for a fair treatment when after getting involved as couple, they decide to divorce and share their properties basing on an agreement previously existing. This may lead into two different cases which are both equally unfair, the first one being the fact that the richer person will always be in a more comfortable position of negotiating and thus being the one which in most of the times establish the bases of the pre-nuptial agreement which are commonly harmful to the other person. The second possibility is the opposite one, in which the poorer person tries to get his or her hands into the fortune and goods of the other, serving from the pre-nuptial agreement which as for probably any of the reasons that we mentioned before may have been arranged to benefit only him or her.
It is by this means that pre-nuptial agreements turns from being beneficial documents into risky treaties which prove to be influenced at most by the personal interests of only one of the involved.
The risks involved in pre-nuptial agreements can be countered if both parties get independent legal advice. This will ensure that both will be fully aware and conscious of the decision their making. From that point on their decision to enter into an agreement is the matter of their own free will. For example I am allowed to give away all of my money to a charity or just a stranger on the street, if I am conscious of what I am doing. The state can never objectively decide what is best for every individual, thus it should not aim to unnecessarily interfere in his decisions. The notion of what is best in the event of the marriage ending is subjective. Some may feel that the process of divorce is so torturous, that they would be willing to have a smaller share of the assets, only to avoid the process through a pre-nuptial agreement. In the current situation these people have the right to decide what is best for them. We think they should retain this right.
The Sunset provision
Firstly, we want to recall a statement from the opposition thta caught our attention: "Concerning children...most pre-nups are drafted in a way so as to take the birth of children into account... the pre-nup can be altered accordingly or may simply expire with a "Sunset provision": in Maine, the agreement will automatically lapse after the birth of a child, unless the parties renew the agreement."
This means that children (including their custody and visitng rights) may be taken into consideration in prenups. However, even though those aspects are written there, it is only on the divorce courts that the decisions are made, and this by a judicial decision [[http://www.onlinelawyersource.com/divorce/family-law/prenuptial/index.html]].
Now, the fact that the opposition cited the "Sunset provisions" (read voiding an agreement) as positive is doing nothing else but giving us the reason that discarding prenuptial agreements in the courts is an option since the conditions can change (like the birth of a children) and so, prenups can turn out to be unuseful and unfair, that's why the "Sunset provision" is contemplated.
The fact that that possibility exists can only open the doors to always be used, as it is automatically done in Maine, but here we are standing for the case of permanently voiding the prenuptial agreements, and are standing still.
Prenuptial agreements: The integral case
This is what prenuptial agreements can do: We have a well-paid man that marries a low-paid wife. They both swear love to each other and say they will never divorce but anyway, they make their prenuptial agreement "just in case". They decide it is fair for each of them to have separate goods of those axquired before marriage but that during marriage, they should split the goods in half and half. They also decide that the man remains with child custody (since he is the one that studied and that has a better income) will receive money from the other party to cover the expenses.
They swear they will help each other out and a third party or an attorney does not find anything out of the terms. The couple marry and their prenuptial agreement is official.
But after certain time, the husband decided he won't work anymore since he has a financial security with his prenuptial (opposition point 2) and he uses that tool to earn income.
Now, the wife decides the husband should work but as he is not doing so, it is unfair to share the income earned during marriage 50/50 and so, according to the opposition, she has the option to ammend the agreement...But the opposition undermined the fact that for this to apply, the ammendments have to be agreed by both parties and so, in this case the husband does not agree and so, he continues to be a leecher. Fair, right?
Now, the wife has two options: Either to continue this marriage and mantain a useless husband or to divorce and lose 50% of her income. Why? Because she's chained to a prenuptial agreement.
Then she learns that the husband has another lover and has a child with her...The wife cannot stand it anymore and decides to stop that hell. She finally decides to divorce. They go into the court and the courts respect the prenuptial agreement and so, she has to share her earnings that are barely enough to survive with a useless cheater, and since he gains custody of the children (as decided on the "right to choose" in their prenuptial agreements), she has to cover the children expenses too but not even gaining custody. Read again: She has to give half of her hardly earned money to the man that cheated her and decide never to work or help with domestic work. That's ridiculous.
In the other case, when prenuptial agreements are discarded, the court could decide that both parties retain their goods before marriage but the income divided proportionally to who earned it (in this case all for the former wife) and she would cover the expenses of the children. but also gaining custody of them and receiving any alimony from the former husband when he cna (he will eventually have to find a job, since he weon't be able to suck from the woman).
The opposition says that we should not take the right of choosing the future of the people's assests, but is it right to give the option of leeching and abusing of someone else? Surely not, and that is what prenuptial agreements present and so, this house must propose the motion.
Contracts in general incorporate protection against one party trying to deliberately abuse and exploit the contract. And abuse occurs in all sorts of contracts. The solution to this problem is not to ban contracts in general, but to counter specific harms by protecting the people who are prone to abuse by providing them with legal counsel and advice. In their example the wife should have gotten better legal advice and a more concrete contract, that would free the wife of certain obligations if the husband doesn't work. But furthermore contracts, including pre-nups, can be declared void, if certain conditions are met [[http://www.mamashealth.com/wedding/prenup/contest.asp]].
Also we don't understand how can the husband earn income through a pre-nup during marriage? (''But after certain time, the husband decided he won't work anymore since he has a financial security with his prenuptial (opposition point 2) and he uses that tool to earn income.'') If one party decides to quit their job ( whether maliciously or even with a good will i.e. to find a better job ) then irrespective of whether there is a pre-nup present or not, a situation, where one married party lives on the salary of the other party is going to happen. The most usual case is when one parent stays in home with a small child while the other one works. This is not something that is being caused by pre-nups.
More generally, modern pre-nuptial agreements often include prohibitions on certain forms of behaviour, such as infidelity, as well as specifying certain ongoing obligations, such as the duty of both members of the couple to continue to work, subject to ammendments made at the agreement of both spouses. The scenario described by the proposition is in fact far more likely to occur under a State based model, because under a pre-nup couples can specify the responsibilities that are entailed within a marriage. That sort of flexibility in division of reponsibilities doesn't happen under state based models. When individuals can set their own pre-nuptial decisions, the propositions example could only arise as a result of a lack of consideration and forethought on the part of the couples drafting the pre-nuptial agreement. To the extent that people tend to suffer in any situation where they do not take necessary contemplation, and consult people with the relevant expertise (in this case legal), we do not think that this possibility represents a significant societal harm.
Of course, there's also another explanation for the creation of pre-nuptial agreements which allow for exploitative behaviour. Couples may deliberately leave holes specifically to leave themselves exposed to the decisions of their spouse. Let's not forget that marriage is primarily a relationship based on trust, and even pre-nuptial agreements which forego some of the protections included in State based divorce systems may not be such a bad thing. Couples often make themselves emotionally vulnerable to each other in order to emphasize the trust within a relationship and in doing so, strengthen that relationship. If we allow couples to leave themselves exposed to emotional harm from their spouses, why shouldn't they also have the right to leave themselves open to financial harms if they believe that depending purely on trust will bring them closer together?
Why should pre-nuptial agreements not be recognised in divorce courts? Proposition summary
The proposition side had the task to convice that not recognizing prenuptial agreements in divorce courts is more benefitial than doing so, and has done it with different pillars: The subjectivity when creating a prenuptial contract, the changing conditions and possibility of regret or commit a mistake, and the opportunity that prenuptial agreements give to abuse another person.
During this debate we found some key questions:
1.-Is Unfairness reated to prenuptial contracts? The opposition tried to say no, but we proved that with prenuptial agreements being subject to abuse and changing conditions, as well as the use of feelings before reason lead to unfair outcomes. We developed with a couple of examples.
2.-Is voiding prenuptial contracts a good measure? We proved yes, we proved that is it legal and possible and even the opposition side committed the mistake of defending the brilliance of prenuptial agreements by saying that in any case they could be abandoned, strengthening our case. We proved analysed the reasons behind nullifying prenuptial agreements and always answering a why, like te way prenuptial agreements do more harm than good.
First of all, we recalled how "feelings produce loving behavior" and how perception and your faculties to decide change from the moment you are in total love before you marry to the time when you are an enemy of the man or woman you have divorced from since basically, at the moment they are written, they are done not to ever be used (or otherwise why would they marry?). Here, the opposition just tried to run in circles saying they should then get legal help but never addressed our main point, that was the different perception you have before signing the prenuptial agreement.
We then went to prove how conditions change from the moment you are about to marry than to that moment when you divorce. We approached to that argument from different sides: One, that economical value for goods change over time and what in the beinning could be a great treasure to protect under a prenuptial agreement could end up being a bulk of trash. Then, we also stated how perception and ideologies vary from the time a prenuptial agreement is signed than to the time it is being pretended to be enforced. The opposition followed by adding hey and then saying the prenuptial agreements could be ammended...Forgetting they have to be unanimous decisions that may not always be convenient for someone.
Moving on to our third pillar, prenuptial agreements constitute a serious chance of abuse. We mentioned how prenuptial agreements are commonly used to gain an economical benefit rather than to protect personal assets. We addressed how love can be used as a manipulative tool, leading to imprudence. We then showed how cna it be up to abuse from both, a richer and a poorer side. A richer side could negotiate the basis to make convenient agreements and in the other side, the poorer would just see in the richer side an opportunity for mining diamonds. The opposition once again claimed for legal advice, but forgot that lawyers will only care for their customers and not the other ones, so the window of abuse would still be open, but with the advice of an expert!
To strengthen our case, we used an exaample to proof how prenuptial agreements can be taken lightly because of love, and how even when conditions may seem good, they may not turn out that good (future cannot be predicted); the opportunity for abuse, the useless ammendments are, the chains prenuptial agreements can provide, the unfair outcomes, and how what they claim as right to chose is less right than it appears. All of this was done analysing a single case. The opposition tried to justify it by saying all agreements are subject to abuse and may have holes, so we have to "trust"...
Now we'll move on to the points the opposition side tried to make.
Their first argument (and they even used it twice) was a point that turned out to be more irrelevant than relevant: Pre-nuptial agreements reduce trauma associated with divorce. They said that disputes over prenuptial agreements are faster and so, reduce a possible trauma to children. However, this is not the case and we proved that what can create trauma is the build-up prior to a divorce and not the court trials themselves and now, unlike prenuptial agreements, the courts have taken measures to prevent children trauma. Then they said that even though you would still have a trauma, at least with prenups, you could be "comfortable because it was your own decision", but when then questioned: Doesn't that lead to regreat for committing a mistake? And that leads to trauma and depression? Their mainpoint died there.
Another irrelevant and off-topic point of them was that supposedly prenuptial agreements produce for informal marriages but we then remarked that we do not advocate either for civil or informal marriages, since informal marriages can also be protected by law and so, we found no inconvenient with them. They tried to rescue their point by saying banning prenuptial agreements reduce marriages but made so without a basis and just as a supposition.
Their two next points were........MARCOS
The opposition then wrote that supposedly not having prenuptial agreemetns would harm marriages since, supposedly, that would lead to less people marrying (once again with a factual basis) and they tried to use our abuse argument to their case (supposing that all States would work on the same way, which certainly isn't the case) but we quickly replied with a real and clear case that showed how an old man and a young woman (their example) would marry and had legal problems with prenups even 10 years after and how the woman just made millions out of a prenuptial agreement.
Then they say that prenuptial agreements also work in marriages, however, he said that maybe that could wok but that's not the case we are analysing right now, but the dissolution in divorce courts. Once again they tried to justify something that can turn out to br bad with another thing that can turn out (Marriages as such!) but without providing an alternative.
So from that we have concluded that the opposition was not able to deliver good rebuttal to our proposals and we addressed the irrelevance of their points or in the other cases, we proved how banning prenuptial agreement would be better than the status quo of their points.
In the end, we couldn't see a single example on how a case would be better by abiding to prenuptial agreements instead of making it invalid and in the other case, we did present various reasons and some cases that let us conclude it is better to void prenuptial agreements.
It is for this reasons and because prenuptial agreements are against the principles of marriage, that stand for "union until the last days of your lives", that we beg this house to propose the motion.
Pre-nuptial agreements reduce trauma associated with divorce
Lengthy divorce battles may not always produce fair outcomes. The person who is more prone stress, will at some point no doubt feel that s/he will do whatever only to end the nightmare of courts. This may entice him to give ground on certain matters, for example relinquish some of his property, only to reach a settlement faster. This outcome may not be fair, because the person is acting under the duress. Pre-nuptial agreements present a fairer distribution of resources, because they have been signed voluntarily by both parties without pressure.
The reason that causes a post divorce trauma is to see parents argue in front of the children among other factors[[http://www.divorcesource.com/CA/ARTICLES/diener1.html]], not to have or not to have a prenuptial agreement that overlooks wealth and estate. Children will always receive alimony and that is the only economical factor that could be important for them. In a case where prenuptial agreements could see for alimony of the children, then we could have cases where they may not receive it at all, since it was the responsibility of the father and guess what? It turned out that the one who worked was the mother and the father has no income at all. That would be traumatic.
Reducing a trauma does not have to do with a legal dispute over what prenuptial agreements can look into but other considerations like an effective attorney communication [[http://www.divorcenet.com/states/missouri/reducing_trauma_and_expense_of_divorce]] (the one that will not let you leave anything just to end the case quickly).
Some measures have been taken to reduce divorce trauma on children and they have been effective. In New York, ''The court system's new matrimonial program shifts the focus from winning and losing in these cases to humane resolution,' and this measure is based on compulsory classes for parents that are on a divorce processes [[http://www.nytimes.com/1998/12/10/nyregion/changes-in-state-divorce-law-seek-to-reduce-child-trauma.html]], not on compulsory pernuptial agreements, which do not have a direct impact on a post divorce trauma, as the divorce itself does.
Pre-nuptial agreements increase security
As some legal frameworks necessitate sharing wealth 50/50, this could mean that assets will have to be sold, so that it’s worth can be divided equally. This will create a problem when some of those assets are inherited and have, therefore, sentimental value.
This heightened sense of security will benefit both parties, as they can be much more confident with the marriage and not be suspicious of one another.
"Making a prenup may actually strengthen your relationship. While people often imagine that negotiating a prenup leads to conflict, communicating about money matters can actually improve the quality of your relationship and support good communication in your marriage." [[http://www.nolo.com/legal-encyclopedia/article-29909.html;jsessionid=02F347E02190A604D68F8CF7A6EDDBD4.jvm1]]
First of all we would like to remember that the motion is:"Pre-nuptial agreements should not be recognized in divorce courts.", even if pre-nuptial agreements assured stability in a relationship, there would be no nexus between these two. Our reasons are as follow:
· The fact of being on divorce process is a clear indicator of having an unstable relationship.
· This motion deals with the legal basis of pre-nups, not with the psychological traumas of each individual.
· It is the distrust and lack of agreements between the couple which requires the intervention of the court for making a fair distribution of the assets.
We would like to clarify that our extension in this rebuttal answers to the interest of determining an applicable criteria for the rest of the opposition statements, given that all of them tend to follow a similar structure in which the most important thing is not precisely to prove the utility of pre-nups for courts during divorcement processes.
Marriage vs an informal partnership
Yet, informal partneships offer little legal protection to the parties involved and ultimately people will be worse off. Pre-nups enhances the liberty of people to enter into the sort of arrangements that they're comfortable with and what they truly desire while still maintaning the legal protection of the state.
What we can understand is that the opposition assumes that informal marriages, also called common law marriages, (what we understand to what they call "informal partnerships") are inconvenient; not having prenuptial agreements encourages having informal marriages and so, voiding prenuptial agreements is inconvenient.
Now, this debate is not wheter informal marriages are convenient or inconvenient since here in the proposition side we do not advocate either for civil marriages or informal marriages but just for the fact that when there is a divorce, prenuptial agreements should not be taken into consideration so the opposition should be as objective and not judge informal marrriages.
As to that informal marriages do not have divorces and offer little legal protection, that is not totally even true since there are divorces and so, they have a legal status and are protected by law in some places [[http://nofaultdiv.com/texas_commonlaw.html]]. That supposition by the opposition was strange since even in the case that you do not have a common law marriage, you can still demand a aprtner as you could demand anyone else.
Abuse in a system with State imposed terms vs. the system with voluntary agreements (pre-nups)
1. When a rich person marries a poor person the rich person takes on a certain risk. Under a no fault divorce system that many states operate, divorce requires an asset separation on a 50/50 basis. Given that the wealthy partner will lose 50% of his assets on divorce he has a much greater financial duress to remain in the relationship and put up with infidelity, neglect etc. This means that the poor person has an opportunity to abuse the rich person in marriage, an abuse, that the rich person could fight against with a pre-nup agreement.
2. Many states incorporate systems of alimony whereby in situations where a partner provides continuing financial support to another partner, that support must be continued for a term in the marriage [[http://www.rbs2.com/dfault.pdf]] . This term was put in place to protect housewives who have no financial income of their own, but changing conditions have made this term open to exploitation by other parties. For example, under Massachusetts law if a wife provided financial support to her husband to support him in an attempt to launch him into a career in a small business or in the arts, she would still be obliged to continue to provide that financial support beyond the termination of marriage under the term of alimony. Clearly, this provides disproportionate power to the husband, who will be receiving unjustified financial support from the wife after the end of marriage.
These two examples show that state based divorce systems also contain the capacity for abuse. Virtually any form of freedom can be used to exploit weaker parties. The solution is to target protections that help those who are likely to be exploited. That’s why we have an ability to nullify contracts. That’s why certain terms, things that are objectively harmful in contracts are simply not allowed. Other matters are subjective and on those matters individuals themselves should be able to decide what it is they want.
We want to prove that our system has a smaller opportunity for abuse and when the abuse occurs, it can be made less harmful. Pre-nups provide four benefits to couples, that State imposed terms of divorce cannot provide don't.
1. They provide flexibility. People can get legal advice and tailor contracts to receive the protection that they believe they will need in the marriage. People with different financial means, different preferences and different views of what is right can ensure that they will not be abused (both by their spouse and the state, both of them, who can have different ideas of wealth, equality etc.) within a marriage and that their marriage will correspond to their desire of what it should be.
2. Pre-nuptial agreements provide specificity. There can only be ONE State system for splitting assets. That system is a blanket ruling, it is limited in the scope and the type of conditions that it can impose on couples. If the conditions are too specific then the State runs the risk of dis-empowering certain forms of marriage. For example some people may want to include terms against infidelity in their pre-nup, but if the State was to force that condition on everybody then it would dis-empower forms of open marriage, where both partners have a more open view of sexuality. The point is that in prenuptial agreements these sort of subjective matters, where nobody can objectively decide on what is right, are left in individual hands. Then everybody can decide what is right for them. And there are so many things in life and love for which there are no objective criteria to judge on their rightness or wrongness!
3. When harm accrues to individuals through these sort of voluntary agreements, then it happens through their own decisions. Society can handle individuals making their own mistakes, but not states forcing them into situations where they suffer harms, because of the State's cookie-cutter system. People in general feel better if they feel that they are responsible for their own decisions and mistakes and thus they adopt better to harms. The State's role should be to provide opportunities for the minimization of the risk of such harms accruing, but not to take away the capacity of people to make their own decisions just because they could get hurt.
But in addition to this we think that couples are far more likely to understand their own pre-nups than have a fine understanding of the divorce law that is imposed by the State. This is because they have to actively participate in the making of the pre-nup, therefore they are more likely to understand fully what they are getting themselves into. Couples don't take Law textbooks with them to bed. Law that is imposed on them by the ''far away'' abstract State is much more difficult to internalize.
This argument has proven that any form of specified system for the division of property will always allow for certain conditions that affect parties in a marriage disproportionally, this always creates some opportunity. We've showed you that prenups provide a more tailored approach-- they thus reduce the risk of the person ending up unhappy. But even when harm accrues to individuals it is accrued through their own decisions and not through a blanket ruling by the State. We think that people have a right to make their own mistakes in the pursuit of happiness.
The first two points ot this oppossition’s argument, may be answered with a simple assertion: The other team didn’t gather enoguh information about the topic, or maybe they just forgot to mention how things really are. This is because divorce procedures are not as simple as the other side wants them to appear, they are though proceses which require a serious investigation and a meticuolus criteria from the tribunal. Also the law is not the same in each country even in each state or city, so the 50 – 50 argument used by the opposition is not representative, and can not be taken seriously because of the vague of its approximiation. Instead, we would like to mention that “Most states will exclude from this division any property that was acquired prior to the marriage or that was acquired via gift or inheritance”[[http://family.findlaw.com/divorce/divorce-decision/what-can-divorce-do.html]]. We believe that this last statement reveals that there is much more information than the one the opposition has been presentig during this debate, and that in most of the times they omit the most important part of it, so a pertinent question right now would be: Which of the opposition’s argument can be taken seriously (despite from the fact that some of them are unsustainable and irrelevant)?
And referring to the second part of the argument which states that people have the right to make their own mistakes in pursuit for their own happiness, we insist in the fact that the opposition is just taking into account the most beningn case (which is very difficult to take place). In the reality, those mistakes commited by one of the persons end up ruining its entire life, because of the signifcance of the relation, the mistakes commited and the assets lost, is this the way of finding happiness? The other team does not mention that the process may affect not only the couple, what about if they have children for example? Would it be fair to sacrifice the children integrity and development just because of a mis calculation (also called error) at the time of making the arrangement? That is the reason because of which the intervention of the state is hended, for assuring fairness in an issue that would otherwise be solved by personal judgments which do not take into account the whole perspective.
We would like to highlight that the opposition has not mentioned the importance of justice, instead they have chosen to amke of freedom their insignia value, but they have not mentioned the whole thing. Freedom is dependant of justice itself. Why? Because the right of election (freedom) is based upon the often individual principle of seeking an internal equilibrium (justice), thus we may say that in order for freedom being important a person must have the necessity to seek the conditions which fullfill the assumption previously described, if this was not to hapen then there would not be election at all. As a matter of fact justice is often represented with a balance, which men seek to mantain in balance by the means of taking decissions. Having said this, we might do well by mentioning once more that it is the impartiality of institutions that assure and protect the true essence of justice.
The opposition’s argument has proven nothing.
Liberty to decide what you want is good and because pre-nuptial agreements can be considered rational decisions
First of all a fundamental question, why the State cannot control your life? We can all agree that one of the important responsibilities of the State is to maximize the ability of people to fulfill their personhood. What distinguishes people from for animals is the ability to reason and make their own decisions based on their own methods of thinking. Any state must preserve the ability of it's citizens to engage in rational thought that makes a person a person. Actions based on that rational thought should be recognized by extension, because what would be the point of living your life and thinking if you're not allowed to make decisions in your personal life based on your own ideas about what is right for you. We think that individuals should have the right to enter into long-term contracts (pre-nups) which have a potential harms (circumstances change) in their pursuit of a good life.
From the very first points of the proposition's case we see that they're trying to defend the idea that people who are in love don't make rational decisions. In particular they do not consider the possibility of that love ending when entering into pre-nups and are blind toward the future. Through this they try to justify the motion of not considering pre-nuptial agreements in courts.
We have four points in rebuttal to that idea:
1. The point that couples who are entering into pre-nups do not consider the possibility of divorce, may hold if everyone were entering pre-nups, but that isn't the case. Most people stay with the State based system. Pre-nups are only entered into by couples who make an active decision to leave the State based system, who decide that the State system isn't right for them, and we would argue that this represents a significant selection effect. A couple who has already decided that one divorce system is not right for them is clearly not a couple that is incapable of considering divorce.
2. Love may mean that the decision isn't a perfectly considered, objectively rational view, but so what-- people fall in love and get married based on impulse to a large extent anyway. There are lots of decisions that have confounding factors. People tend not to think they'll get sick, we still let them decide whether to get health insurance or not. Optimism doesn't mean you take away an individuals decision making freedom because they might make imperfect choices, and to do so is patronizing for any State. People should be allowed to make imperfect decisions in a free society.
3. Even if impulse is present, decisions are made with constant advisement from legal professionals who actively question their decisions, these aren't things the individuals write up themselves on sheets of paper.
4. Finally, most of what goes into a pre-nup has nothing to do with divorce per se. Most of a pre-nup determines the responsibilities within a marriage, what each partner needs to do to remain without fault should a marriage be terminated. This section only requires the couple to have a considered view of what they think a marriage should be. Given that they are getting married, we think that this is something they should have. Even the sections that deal with divorce don't require an individual to think that they will be divorced. It simply requires an individual to decide what they believe would be fair under this hypothetical scenario. People have shown themselves capable of declaring decisions under hypothetical scenarios, no matter how unlikely they believe these scenarios to be, so we don't think the effect of love, which only impacts the person's assessment of the probability of divorce, would impair their ability to decide what they think would be fair under that hypothetical scenario.
Furthermore, we think that all sorts of dangerous and absurd conclusions can be drawn if we consider people to be irrational when they're getting married. If people are irrational about the terms in the pre-nup, then surely it must follow that they irrational about what they want from their marriage and how the decisions they make during marriage. Should the State then have the right to decide how people should behave within marriages? Love is often an irrational impulse, that means that they are irrational about whom they chose as their partner. Does that then mean that the State should decide what sort of partner people should be with? That is clearly an absurd scenario and the fact that it is absurd to most people shows how much people value individual liberty and decision making, even if that entails risk.
The second argument that we want to consider in more depth here is the argument of ''future blindness''. The proposition claims that the fact that decisions made in the past may become detrimental to individuals in the future, because of changing circumstances should be a basis for not considering those past decisions in court. If they really believe this then they wouldn't approve of marriage. When you marry someone you sign a contract that you may later regret. Future blindness is a necessary evil for every marriage. Society accepts that there exists a pretty good correlation between who you are now and who you are in the future and the sense of individual continuity. Otherwise there would be no basis for punishing crimes.
They raise the problem of mutual consent, the fact that you cannot change your decision without agreeing with the other party first. But we think that responsibility is a good thing. People are held accountable for their past decisions in society, there's nothing wrong with that. Also, just because one individual in the marriage changes their views, shouldn't mean that the other party shouldn't be protected. The liberty of one person to exit a pre-nup shouldn't come at the cost of another person.
Either way the problem of mutual consent falls when we look at the alternative-- the State imposing the terms of divorce on you. In that scenario you have no consent at all, you are entrapped into what the State thinks is right for you. In the point ''The State imposed system is not objectively right for everybody'', we show that the proposition has not proved to us that the State is objectively right. We think they'll have a difficulty proving it, because it is natural that all people are different, desire different things and that one-system-for-all, especially in such personal matters as marriage, simply will leave many people unhappy.
Individuals have the right to enter into long-term contracts which have risks in the pursuit of good. Future risk acceptance is the fundamental freedom of human activity. We think that by proposition's argument people shouldn't be able to invest (because they might not receive returns on their investments) and shouldn't be able to vote (because your opinions might change before your elected politician enters into office and you no longer support them, or because he himself might change in that time period). A plethora of equally absurd examples can be brought if you follow the proposition's logic.
In conclusion this argument was written to defend the validity of pre-nuptial agreements and the right of people to make such agreements. To do this we have given arguments against proposition's claim that pre-nups are irrational (but also pointed out that this idea can be reduced ad absurdum-- if pre-nups are irrational then chosing your partner in marriage is also irrational. Does that mean that the ''analytic and objective'' state should determine whom you marry?) and against their claim that future blindness is a fundamental harm in the case of pre-nups.
Banning pre-nuptial agreements actively harms some marriages.
Consider the example of an old rich man wanting to marry a young very attractive woman. Obviously there is a societal perception, particularly a perception among the old man’s family, that she’s a gold digger. But actually it is a case of love. The young woman hates the idea of being ostracized by her family, by her friends and by the community. If pre-nups are actionable she can offer a pre-nup in order to provide proof to the people around that her interest in the marriage are pure. If pre-nups are not recognized by divorce courts, she faces a painful dilemma of either marrying the man she loves and being ostracized by the community or not marrying him at all. This is just one example of how pre-nups are necessary to make a marriage work and for two people to be happy. We think that in general this is what proper pre-nuptials do : they make people happy. Not recognizing them is thus an active harm to some people's marriages. In this example, if the young woman decides to marry the wealthy old man, their marriage could be split apart by the resentment of the old man's family and maybe by the doubt gnawing at the old man's heart, that she really is a gold digger.
Pre-nups improve society by protecting marriage. In this example gold digging is an active harm to society, because through it some can gain financially from the State based legal system and that degrades the purity of marriage. When the purity of marriage is degraded in people's view people start fearing getting married, because they might end up in some sort of a mess. If they are allowed to counter the risk of for example gold digging through pre-nuptial agreements, then the purity of marriage for is restored. This means that people can have happy unions, which in the case of State based terms they either wouldn't have entered or would have entered and ended up unhappy. This is why not recognizing pre-nups as valid in divorce courts is an active harm : people are forced into something that makes them unhappy, even though there is a perfectly good alternative in the form of pre-nups.
On their example of the old man and the young woman. First of all, why should age matter? Hugh Hefner has various Playmates and no one is angered at all! The case they are setting is first, too difficult to happen and second, goes into further supposition once again. If some people would see the woman as a gold digger, then why should she care if she supposedly loves the man? If she really loves him, then that would have no effect at all, so their point is very weak.
The opposition says not having prenuptial agreements degrades marriage, however it is the contrary. Prenuptial agreements are against what marriage stands for, that is "union until the last of the days", and having a document t see for divorce is just opening the possibility of violating what marriage stands for and so, open the door for explotation and there, mine gold.
"Gold digging" is more possible (and the proposition has already demonstrated how prenups constitute a serious opportunity for abuse) under prenuptial agreements, and we will give you one example...Of Hugh Hefner, now that we have recalled him.
It results that after 10 years of marriage, Hefner's wife and former "Playmate of the Year" Kimberly Conrad decided to divorce after revising their prenuptial agreement would benefit her economically in 1999. Since then she has made millions of dollars (she sold an estate that once belonged to Hefner for $USD 10 million in July)[[http://www.divorcemag.com/news/hugh-hefner-playboy-divorce-playmate-of-the-year.shtml]]. Why? Because she has been mining gold out of Hefner with a prenuptial agreements
Now she has filed suit to arrange further problems out of the prenuptial agreements...Ten years after their divorce! This doesn't just show that prenuptial agreements are not only slow, regretful ad unfair.
Ladies and gentlemen, the case that stands for fairness and is against economical abuse can be read on the left side of this page.
The State imposed system is not objectively right for everybody
We have already stated that there are some terms that could in theory be entered into pre-nups that can be seen to be objectively wrong, and in these cases we do not allow their inclusion in pre-nuptial agreements, e.g. the infliction of harm. The proposition's burden is to show that property division systems other than that imposed by the State are objectively worse for all people, or that people are simply incapable of making a decision. We have already discussed the second, and we think that the proposition have just as difficult a job in proving the first.
Consider first assets before marriage. Surely there is no objective basis for suggesting that these be split evenly, given that only one member of the union had a hand in their acquisition. But even consider the division of assets during the marriage. It is not objectively the case that assets should always be split 50/50. Not all members carry the same work ethic, not all have the same talent, and just as it would be unfair for one spouse to be entitled to assets that they had no share in acquiring, so would it be equally unfair for a partner to be entitled to an unqualified right to earnings that arose as a result of education and talents that were built up entirely before the marriage, in other words, talents that this partner also had no hand in creating.
If the State system is not objectively right for all people in all cases, then pre-nuptial agreements should be allowed so that people can agree themselves what is right in their situation.
Rebuttal to the rebuttal of the point ''Pre-nuptial agreements reduce trauma associated with the divorce''
But furthermore, when parents are engaged in a vicious battle over assets, it's far more likely that they'll take vindictive measures during child custody battles. This means that they are less likely to take into consideration the child's need for a peaceful resolution and more likely to desire to rip their partner apart in court.
We think that compulsory classes for divorcing people are a great idea for people who don't decide to agree on a pre-nup beforehand. We however question they're effectiveness over pre-nuptial agreements. There's two possibilities when a pre-nuptial agreement is taken into account: 1. Both partners are happy with what they agreed on in the past. 2. Either one partner or both are unhappy with the pre-nup. In the first case there's no problem for anybody and everybody ends up as happy as they can be in such a situation. In the second case we think that people will still take comfort from the fact that it was THEIR OWN decision (if it wasn't their own decision, if the decision was made under duress etc., then the pre-nup can be voided in court) and thus have a far greater chance of emotional recovery.
Also, we're not suggesting compulsory pre-nuptial agreement. In fact in essence the proposition is proposing a compulsory pre-nuptial agreement by the State. Every marriage has a ''compulsory pre-nuptial agreement'' (because it's a contract, and every contract has to have terms on how it ends)-- the question in this debate is whether it should be the State's or agreed on by the individuals.
And finally they didn't respond to an important part to the argument, that decisions and settlements in court are far more prone to duress and can thus be considered less valid than pre-nuptial agreements that are made with a clear head.
If we are atlking about "likeliness", then it is far more likely (not only likely but almost certain) that for a couple that is in a process of divorce, there will always be disagreements or fight over certain assets, since not everything can be contemplated in prenuptial agreements and the damage is caused by watching the parents fight over something, but the time that it happens at the courts is minimal! A divorce is a last resource that is taken when both (or at least one) of the sides have reached a boiling point and they have already passed through the process of disagreements and fights over very different situations.
It is not to see parents on a court trial what makes a child have a trauma over divorce but the build-up to that divorce[[http://www.advancingwomen.com/divorce/40748.php]], that may include violence and harassment.
Thus, it is this fact and not a series of suppositions that determine not recognizing prenuptial agreements have no effect at all in a psychological trauma for chilren.
Now, talking about being comfortable with a mistake that you've made and that has cost you...Doesn't that turn into regret and regret is a type of trauma? Since all of the divorces are unchained by a series of problems, then there are no "happy divorces" and so, there will always be at least one side that is disappointed/angry/regretful (if not for both).
When you are chained by a prenuptial agreement, you are under obligation to fulfill your past actions and if now it is a mistake, you will not feel "comfortable because it was your choice" but rather regretful, and regretting causes depression and if we want to go far, depression is a main reason for suicide [[http://en.wikipedia.org/wiki/Suicide]] ...Now where is the harm?
It's on this grounds that we also prove that judicial decisions are less likely to produce trauma and depression and that prenuptial agreements (which are not made with a clear head, as we have explained in our first points) are a real and possible way of having a trauma.
Rebuttal to the rebuttal of the point ''Marriage vs an informal partnership''
We see a larger harm here. Through this motion what the State effectively is signalling to people who don't agree with the State on asset division after marriage (and certain other matters), is that if they don't abide by the State's definition of how these matters should be settled during divorce, then they're not married and shouldn't be married at all. What the State is saying: ''If you don't believe in 50/50 splits then you're not a marriage.'' This denies couples who strongly disagree with the State on that matter the right to a State marriage, it prevents them from being recognized as married.
Given that there is much more to marriage than the division of assets after marriage, it's an unfair imposition on the part of the State. It certainly is a harm, when fulfilling partnerships cannot have the societal recognition and respect that is associated with marriage, only because they have a different opinion from that of the State on how their property should be divided after marriage.
There is simply no proof that there are people against laws on marriage...Written in their own Constitutions! And there is no proof that the States that do not recognize prenuptial agreements have had a decrease on the amount of civil marriages.
Rebuttal to the rebuttal of the point ''Pre-nuptial agreements increase security''
In response to their three points we say (in the correct order):
1. They're making the mistake that divorce law only matters to couples getting divorced. We've shown benefits to a nascent marriage that can flow from the adoption of certain types of pre-nup (for example, when a young beautiful woman marries an old rich man for love). These benefits only flow if the pre-nup is believed to be actionable, and the pre-nup is only believed to be actionable if it is seen to be actioned in existing divorce cases. Divorce cases can provide stability to existing marriages by demonstrating the actionability of pre-nups by their own example.
2. On what basis should the law be designed if not the minimisation of harm? The action of divorce is something that takes place between the two individuals married, so we would argue that the minimisation of harm, both financial and psychological is a consideration that is anything but irrelevant in the framing of divorce law.
3. Here the intervention is of an even better kind. The conflicting parties are over-ruled by the decision that they themselves judged to be fair when in a calm, pre-conflict state. They cannot blame unfair divorce law on the government, the standards on which the divorce are judged are their own, and therefore will carry greater legitimacy than the arbitrary decisions of a far-removed State (and laws framed by some bureaucrats).
The confusing lines about the attractive of pre-nups for new couples just doesn't make sense, first of all because they are no taking into cionsideration any of the objections that we've stated during this debate arguing why pre-nups represent a high risk of abuse and that it is actually unfair, in toher words they are assuming wihtou reason that everything is going to be all right and have a happy ending, would we be disscussing this topic if that was attached to reality? And secondly because the fact of pre-nups being demonstrated to be actionable would also bring more abuse, given that they constitute a warantee that persons will get wat is stablished,which at a time and as we like to mention, is unfair.
Now, on the second counter point, we would like to suggest that for further debates the opposition team tried not just to argue, but to reason the motives for aguing it. They never said why should the minimisation of damage should be taken as basis of the divorce law, but most important divorce being a process between to individuals married and this previos point? We guess it may be just “irrelevant”
The tirad confussing point its just the same, we can’t find its importance, and one more we would like to apply our point because it actually happening and is the motive for us being debating for three days about it: It is the distrust and lack of deals between the couple which requires the intervention of the court for making a fair distribution of the assets. (We hope that the opposition notices that we are referring to a process in which pre-nups are involved).
Concluding, if the opposition wants to contribute to the development of this discusión we strongly suggest to take matters more seriously, and of course suggest that if the oppossition still thinks that this debate has nothing to do with justice then they might want to change their strategy.
1. They say that pre-nuptial agreements are bad because people making these agreements are not fully rational
2. And that these kinds of contracts are open to abuse
In support of the first point the proposition claims that pre-nuptial agreements are made while in love, they make the claim that “When you are in love you don't have the same perception and that gives the same effect of you not being under your full faculties, which is obviously, not able to take decisions.” So the proposition are saying that when in love people are not rational enough to enter into one contract – the pre-nup – but are rational enough to enter into another – the marriage. We think this is already a contradictory claim.
The proposition claim that the pre-nup is a contract made to never be used. We challenge this as well. People that would agree to a pre-nup are the kind of people who actively opt out of a system the state is forcing unto them, and take matters into their own hands. If they sign a pre-nup to distribute their wealth fairly in case of a divorce, then they are the kind of people who acknowledge that divorce might happen. Therefore we conclude that they are more rational and with more foresight than people who get married without a pre-nup.
The second point the proposition make is that pre-nups are open to abuse. They show this by hypothetical examples of how pre-nups can go wrong. They do not however show that pre-nups specifically are more prone to abuse than any other contract. They do not even prove that pre-nups are more open to abuse than the option offered by the state.
We showed you that pre-nups are not considerably more open to abuse than the state splitting wealth as it sees fit. A pre-nuptial agreement is a means for people who find that the solution offered by the state would make them vulnerable to abuse (a rich person would be justified in worrying whether his/her partner is getting married only for the
money, if their wealth was to be split 50/50 in case of divorce).
Certainly changing circumstances can be taken into account. The Sunset provision and other similar provisions that are used in some places allows for pre-nups to be voided if certain circumstances change. This shows that we can protect parties of the agreement from abuse while still letting them make the agreement. As for requiring mutual consent: yes, that is the point of an agreement that both parties agree. If one party does not consent to changing the terms simply because he/she wants to abuse the contract, the other party can get legal protection from that kind of abuse as well.
We opposed the propositions case by showing:
1. State does not always know best
2. Pre-nuptial agreements have benefits for the marriage
What the proposition is proposing is that we take away the freedom of people to themselves draft an agreement of what they think marriage should be and how it should end, the proposition claims only the state knows the correct terms of marriage. We challenge that. We brought a comparison of the two systems and showed you why having optional pre-nuptial agreements available for couples is beneficial.
We showed that pre-nuptial agreements allow for flexibility and specificity, for people to get exactly the kind of protection they think is best for them. People can get legal advice on what aspects of the marriage they specifically need to address in the pre-nup. If the state were to dictate to everyone the "correct" terms of marriage, this would leave a portion of people underrepresented. We brought examples of couples with different ideas of fidelity. If the state would have a blanket rule on all marriages, people in these marriages will find themselves vulnerable.
Furthermore, we said that even if a pre-nuptial agreement produces undesirable outcomes, it is the result of the person’s active choice. In a free society we allow people to make their own decisions even if they lead to mistakes
On the other hand we think that the state should not be forcing people into contracts that might be harmful to them. If harm is done to a person as a result of a law this person does not agree with, they will feel powerless, a victim of the legal system. The state should provide means for people to minimize the harms that might occur as a result of their actions – and even people who consciously opt out of the state definition of marriage by signing a pre-nup are still protected by the state just as signatories of any other contracts. People are more likely to have a better understanding of their own personalized pre-nuptial agreement than the laws governing marriage.
We are not proposing mandatory pre-nuptial agreements for everyone, we are saying that there are many cases where the freedom to have such an agreement is beneficial to the couple.
Benefits for the marriage
We also claimed that pre-nuptial agreements have benefits for the marriage in case it needs to end in divorce. Having written down the terms of the marriage and the distribution of property will shorten the time of the legal battles associated with divorce because a large part of the arguing has been done beforehand in a non-traumatizing way (both parties consenting to a pre-nuptial agreement). This benefits the couple financially, as extended legal battles can be costly, as well as mentally, as they will not have to go through a painful divorce procedure and their children will not have to witness their parents fighting over who gets to keep the car and who gets to keep the house.
We do not buy the propositions claim that “This motion deals with the legal basis of pre-nups, not with the psychological traumas of each individual.” In response to the propositions arguments we showed that there is nothing wrong with the legality of pre-nups, in our own arguments we showed that the pre-nuptial agreement is often a necessary and beneficial part of marriage. We think a law that allows marriages to be more happy is a good law. A law that allows pre-nuptial agreements is such a law.
But the pre-nuptial agreement has benefits for the marriage even if the marriage does not end in divorce. It provides a sense of security, especially in a marriage of two people from different backgrounds. If both parties agree to a pre-nuptial agreement whereby the richer half of the couple protects his/her property from being split then both parties agree that they are not getting married as a means of getting rich. Moreover, pre-nuptial agreements are not only about sharing wealth in case of divorce. A pre-nuptial agreement contains the terms of the marriage, what each person needs to do to remain true to the spirit of the marriage. It allows for the couple to draft their vision of what they think their marriage should be.
People might be deterred from getting married if there was not an option to protect themselves and their assets with a pre-nuptial agreement. In that case these people might be forced into a kind of partnership not recognized by the state. In case of marriage with or without a pre-nuptial agreement, if one party, the weaker side was abused the other, there would always be a chance to seek legal protection from abuse. If, however the couple were not in a kind of relationship that was recognized by the state, the weaker party would be completely without protection from the law. In such cases a housewife that was not married to her partner could easily be abandoned and left penniless. We consider this a huge harm.
For the reasons we have given through out the debate - that we are not convinced by the proposition that contracts should not be entered into when under the influence of love (the proposition does not have anything against marriage itself); that pre-nups are not more open to abuse than other kinds of contracts; that, on the contrary, they allow people to protect themselves from abuse; that a system where people can freely define marriage for themselves is a better system than one where the state dictates this for them; and that having a pre-nup is beneficial for the marriage itself – we are proud to oppose the motion.