The Sunday Times

July 25th, 2010

Marriage vows are obsolete, we need compulsory prenups

Love and marriage are supposed to go together like a horse and carriage, according to the old Frank Sinatra song. But they don’t. In romantic marriage the uncontrollable racehorse of sexual desire has been awkwardly harnessed to the stolid carthorse of duty to drag along a ramshackle wagonload of babies, broken washing machines, property, nasty mothers-in-law, flushing lavatories, dementing old people, bills, debts, routine, suspicion and disillusion.

Out of all this may come in time a profound married love; as my formidable mother-in-law used to say, “The first 30 years are the worst”, and married people may learn to pull together in harness. But these days fewer people are prepared to wait it out, which is why the matrimonial wagon so often lurches off the road. Romantic marriage is inherently unstable.

Modern longevity is making it even more so, according to Cameron Diaz, the actress and social analyst. Last week she pointed out, with a frankness that Hollywood film stars used to avoid until recently, that “with today’s life expectancy you could live another 50 years with that person. I think people get freaked out about getting married and spending 20 or 30 years sleeping with the same person. So don’t do it. Have someone for five years and another person for another five years”.

Not everyone would take such a radical view of marriage and how to avoid its woes.

But there does seem to be some radical legal thinking going on about marriage or at least about divorce — which is a way of dealing with the woes of marriage. The past few decades of divorce policies in this country have clearly failed — that is one reason London is now the divorce capital of the world. People divorcing rich husbands or wives flock to this country to get the most out of them in court, regardless of where they were married or what their prenuptial agreements were, because prenups are not, so far, enforceable in law here; some divorcees even come back to court, after a settlement, to demand more.

Clearly unjust, all this is partly because divorce cases here have historically been bedevilled by the same confusion as marriage itself. It comes from a reluctance to face the differences between a contract and a romantic alliance and the proper consequences of that distinction for a just division of the spoils. Simply put, if when you get married you fail to state your expectations and obligations, or if a prenuptial agreement is not recognised in law and if there is no legal notion of blame, then fairness upon divorce must be as long as an individual judge’s piece of string.

It’s now clear that judges are thinking rather differently, and some are even gently pressing for legislative change in parliament. Senior judges are worried that the High Court’s family division has earned London its reputation for a good place for a lucrative divorce. They are taking a newly tough line with former wives of extremely rich men who try to reopen their divorce settlements. In three recent cases, including one last week, senior judges have thrown such applications out. And in one important ruling earlier this month, the Court of Appeal determined that the prenuptial agreement signed by a German heiress and her French husband should be given “decisive weight” in their divorce settlement. That is not the same as enforcing it but it is a great deal more than taking it into consideration, which has been the situation.

In this landmark case, Nicolas Granatino signed a prenup with his future wife, Katrin Radmacher, a German heiress due to inherit £100m: in both her country and his, this agreement to protect her fortune in the event of divorce would be legally binding. After a while things went wrong, a divorce followed and Granatino got a settlement that might seem generous to many. It was certainly contrary to his prenuptial agreement not to make any claims on her money, as he got a good lump of it.

His wife appealed and on July 2 the appeal judges made their historic judgment giving “decisive weight” to the couple’s prenup and actually reducing the husband’s settlement.

Granatino has now appealed to the Supreme Court. Whatever it may say, the Supreme Court cannot determine that prenups are legally binding here. That would need legislation — and the Law Commission, which is reviewing the subject, will not be making recommendations until 2012. All the same, if the Supreme Court upholds “decisive weight”, that would be a step in the direction of legally binding prenups in this country.

Surely prenups must be right: marriage really is a contract that ought to be customised; the old standard agreement for everyone is obsolete, as ludicrous struggles in court have proved. I think prenups should be compulsory, too, as well as legally binding: everyone should have to make one of some kind, not necessarily about money. And nearly half of all Britons would like one, according to a survey by the internet bank Smile. For the other half, the requirement to make one would concentrate people’s minds on what marriage meant and what their obligations were.

The 2007 Smile survey put together a prenup wishlist, with 10 of the most important terms and conditions. The main concern was adultery, followed by equal housework, shopping sprees, letting your appearance go, contact with exes, snoring, unwanted family visits, breaking wind, leaving the lavatory seat up and control of the remote — a very telling detail. It is a sad little list, but at least it shows some forethought: rushing into marriage without considering what it really might involve is why divorce is often so acrimonious here; in other parts of Europe, which have prenups, there is less bitter dispute and less use of the courts.

A legal obligation to talk about money and marital politics might overcome the astonishing squeamishness people seem to feel about looking ahead and imagining the less good and the worst. Mishcon de Reya, the divorce lawyers for Diana, Princess of Wales, found in a recent study that 9 out of 10 British top earners refuse to sign prenups, even though they know it would be in their interests, because they don’t like talking about money.

It is simply irresponsible not to try to make some provision for an uncertain future, just as it’s irresponsible not to make a will. Prenups might well remove some of the woe from marriage and might even help to keep the rickety matrimonial wagon on the road.