Pre-nuptial agreements should not be recognised in divorce courts

Pre-nuptial agreements are no more unfair or unpredictable than any other kind of contract is. They’ve been around for decades and are standardised to minimize the risk of harm occuring to the individuals involved in the contract while still maintaining their right to agreen on the terms of the divorce.

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.

The opposition is arguing that for the loving couple pre-nuptial agreements are effectively random pieces of paper that have no value to them because they will probably never be used. That is untrue. We have already shown you in the previous argument that these agreements are hugely important. If people would truly only care about love and never think about the future, they would just sign the agreement but that is not true: in reality these agreements are carefully drafted over extended periods of time with attorneys and legal help, which means that these agreements are not created simple-mindedly. Furthermore, attorneys obviously will point out problematic areas of the agreement: if for example one party says “if we divorce, the other party may take everything I own” then clearly the attorney will suggest that the party, that is making such a statement is not very wise. The same also works in less dramatic cases.

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.

Marriage is not quantum physics. There have been plenty of cases of divorce to set a working, fair benchmark to judge pre-nups by.

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.

This argument does not make sense because the proposition is trying to claim two conflicting ideas simultaneously. If the richer half has more power to shape the contract to his/her liking, how will the poorer half be able to “get his/her hands on the fortune”?

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 proposition have mentioned several classes of situation in which pre-nuptial agreements can be considered detrimental. We have shown that these circumstances can be specifically targetted and avoided by use of an effective legislative framework. Here, the use of Sunset provisions allow a legal system to maintain individual rights to enter into pre-nuptial agreements while still preventing detriments that arise from rapidly changing circumstances. In other words, we are demonstrating that it is entirely possible to limit the occurrence of harmful situations that may result as a rise of the improper use of pre-nuptial agreements without restricting the freedom of the majority to enter into them and make use of the benefits and flexibility that they provide a marriage. The logical conclusion that since certain objectively harmful forms of pre-nups aren’t upheld in courts, all pre-nups shouldn’t be upheld simply doesn’t follow. Pre-nups incorporate protection against exploitation and duress. So there’s more to pre-nups than they demonstrate in their examples. Mostly people consider themselves to be better off when entering a pre-nup, why would they consent to it otherwise?

We respond to this argument and others of the same kind (where proposition uses examples to prove a general case that pre-nups are bad) in our point ”Abuse in a system with state imposed terms vs. the system with voluntary agreements (pre-nups)”.

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?

A contract that clearly determines the division of wealth and other matters shortens and simplifies the divorce process. The constant bickering over who gets what is a great emotional damage that can be countered by pre-nups. During a divorce process where a pre-nup is considered the parties get what they agreed on. Their tension and anger towards each other is minimized and they can go their separate ways in a more humane and civilized way. This is especially important to couples with children. Children suffer greatly during divorce procedures as they dehumanize former partners and turn them against each other. When relations spoil to that extent children get the greatest share of emotional trauma. We don’t think that anybody should suffer to that extent and this is why people should be allowed to counter this sort of damage by entering into pre-nups.

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.

When people are allowed to enter into pre-nups they can ensure themselves against things that they fear. For example, when the richer person enters into the marriage with the knowledge that his/her wealth is protected, the marriage will be better off because it will be clear that the other person is not marrying for money.

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]]

Banning pre-nuptial agreements may discourage some couples from getting married, because they will not be able to enter into a sort of arrangement they are comfortable with. The marriage itself is a sort of contract. If the way marriage ends is completely controlled by the state (the courts) many people will not be able to counter the risks that they see in getting married through another kind of contract– a pre-nuptial agreement. Some people will fear the divorce procedure that will be more painful, complicated and impersonal if voluntary agreements in the form of pre-nups are not considered, others will fear for their assets.
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.

The proposition has used example based reasoning to show that a division of property based on a pre-nuptial agreement can be open to exploitation. We would argue that any form of property division specified at the beginning of the marriage and visible to both people at the beginning of the marriage and this includes state mandated property division system (divorce arranged by courts) no matter what form it takes, is also open to abuse. We bring two examples.

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.

A marriage is a contract, any marriage has certain terms that apply when the contract is defunct. They’re saying that there should only be one set of conditions of how marriage is dissolved that is determined by the State. What we want to establish in this point is the value of individual liberty and why the State should respect decisions of individuals to engage in pre-nuptial agreements. We also want to write some more extensive rebuttal on the nature of decision making under the influence of love and about the uncertainty of the future, to further justify the validity of pre-nuptial agreements.

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.

The alternative to pre-nuptial agreements is State imposition. This point is about how this imposition takes away measures that help people stabilize their marriage and to define what is important to them in a marriage.

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.

We think that the proposition thus far has gotten away with simply claiming that pre-nups have a terrible risk of harm accruing to individuals who decide to enter them and that along with the fact that these people ”clearly” aren’t thinking rationally and don’t really know what’s right for them when they sign the agreement, should be the reason for not recognizing them in divorce courts. We want to place a burden on them in this point. We think they have to prove to us that the State based system is a better mechanism and knows what is objectively better for the individual.

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.

We think that it is important for any legal framework to lighten the emotional damage of the people involved in court cases. If people who get married want to minimize the harm done to their children if they ever have to divorce and go to court, then they should have that right. They’re saying children are only traumatized by decisions that affect child custody. It is quite obvious that all protracted court battles between parents are emotionally traumatic to the children.
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.

This debate IS about informal partnerships if a State based system forces some people into unrecognized partnerships. 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.

We don’t think that the proposition sees the full merit of our argument, when they simply state that the fact that pre-nups can actually improve the quality of a marriage has nothing to do with the debate. This improvement in quality of the marriage comes from the fact that people have the liberty to tailor their marriage and the end of their marriage to something that they desire. Why should something that brings great benefits to somebody who enters a marriage (also our constructive point ”Why not recognizing pre-nuptial agreements actively harms marriages?”) not be recognized by the State, just because in very limited isolated cases people make mistakes and fall victim to abuse? Through out this debate we have said that the better solution would be to limit opportunities of abuse through effective legal oversight and advicing.

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 propositions case basically comes down to two things:

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.