Is modern marriage a bargain? Exploring perceptions of pre-nuptial agreements in England and Wales

Abstract

Drawing on data from a recent national and follow-up study exploring attitudes towards binding pre-nuptial agreements at a time when the Law Commission was considering law reform, this article considers what might be gained and lost in family law terms by their introduction. Looking at the tensions between providing autonomy to agree arrangements at the outset of a marriage and achieving fairness between the parties at the point of divorce, questions were framed in the study to consider views on the socio-legal and psychological issues surrounding a move towards making pre-nuptial agreements binding. In particular, it explored whether we are ready culturally to use pre-nuptial agreements and any perceived limit to their acceptability. In addition, were there situations where pre-nuptial agreements were considered more or less appropriate for those entering marriage? How might they affect the commitment involved in marriage? More generally, in the light of the study’s findings, the article examines the implications of a legal and moral shift away from a paternalistic court redistribution of assets at the point of divorce towards an approach based on enforcement of a pre-maritally determined private contract, and concludes by considering what sort of a bargain it would be acceptable for modern marriage to become.