If we’re to buy into marriage we need prenuptial contracts

The story of Ray Parlour and Karen Bruce is a modern morality tale. She was a young Essex girl who grew up in a redbrick terraced house in Romford and became an optician’s assistant, and he was a teenage football player on an apprentice contract with Arsenal.

They met in 1990 and by 1999 they had produced three children and he had become a football star. But meanwhile Ray had started drinking heavily, partying long and late and getting into quite a lot of laddish bother.

His cheekbone was fractured during a bit of a ruckus at Butlins in Bognor Regis. Then there was the night in the cells in Hong Kong. And although they lived in a mock Tudor home in Hornchurch, Essex, with six bedrooms, two garages, a swimming pool and electric gates, and although he was earning squillions, life for Ray and Karen was not all sweetness and light.

According to Tony Adams, the former England player and captain of Arsenal, “it became a long-standing joke between Ray Parlour and me that the birth of a baby was a good excuse for a bender”. But reader, she married him. In 1998. In 2001 he told her he did not love her any more and in 2002 they were divorced.

Now in 2004, Karen, 33, has made history. She was all over the front of the newspapers last week, smiling as radiantly as on her wedding day (also pictured), or possibly even more radiantly, after the Court of Appeal award. “Footballer’s ex-wife wins a third of his future income” according to one headline. This is on top of the 37% of the family assets that she already has, including two houses. So she will be receiving more than £440,000 a year of his future salary.

She says she’s “over the moon”. The public response was swift. “Fleeced” said The Sun. “Arsenal star taken to cleaners”. The message was clear: “Who dares weds”.

So this fairy story gone wrong has turned into a morality tale, or rather into a tale that very much needs but lacks a moral. Can it be right that an ordinary girl cleans up such immense sums on divorce, no matter how devoted she has been, no matter how much domestic work she has done with her own fair hand and no matter how hard she has struggled to keep her man off the bottle and fit enough to play the beautiful game?

Contrariwise, can it be right for a man to dump his teenage sweetheart, whom he married for richer and for poorer, without sharing his riches with her as well as his problems? But most of all, can it be right for the aforesaid teenage sweetheart, wronged though she may be, to lay claim to a man’s future earnings as well as to his substantial and unexpected earnings during the marriage?

What sort of precedent does this set and could even King Solomon himself judge such matters? This is all very tricky. In fact the Parlour case is very unusual. All is not what it seems.

For instance, these huge annual payments will be reviewed after four years; they were not intended to be riches for life and indeed the judge has instructed the former wife to save the greater part for the future, when her ex-husband may well be, in her QC’s cruel phrase, in a football “twilight”. And for all the uproar last week and talk of landmark decisions I don’t think there are any particular morals that can be extracted.

Modern divorce is a hopeless muddle, because modern marriage is a hopeless muddle based on all kinds of unexamined and conflicting ideas; the Parlours’ tale is merely an extreme reminder of that painful muddle.

In my view the worst confusion that bedevils both marriage and separation is the underlying one between romantic sexual love and contractual obligation — two notions about as opposed to each other as one could possibly imagine within normal human affairs, yet regularly yoked together, incompatible though they are, in the creaking harness of marriage.

On the one hand we imagine that we marry for love, but on the other we tacitly assume — according to the evidence and the decisions in the divorce courts — that we also marry for child rearing, security, granny care, domestic services and social cohesion, all of which are often the enemies of sex and romance: Eros is an anarchist and disappears at the first signs of repression or problems with the mortgage.

Despite all this we also somehow imagine that if love has drifted away we are quite justified in breaking that tacit contract. It has become more and more morally permissible. The idea of fault, or more precisely of fault affecting the financial settlements of a divorce, was abandoned long ago.

This has always seemed odd to me. It is often said that both parties in a divorce are equally to blame, but the repetition of a cliché doesn’t make it true. Quite often there is more blame on one side than the other. In any other contract than marriage that would certainly be taken into account in resolving a dispute.

Marriage is the most important contract, for ourselves and for the wider world, that most of us will make, yet men and women sign up to it daily on an erotic high without mentioning the terms of the contract, still less examining them.

In this country prenuptial contracts, made by the prudent few, are not recognised in law. We seem to suffer some sort of cultural squeamishness that prevents us recognising (as other cultures do and as Hollywood film stars tend to) the commercial nature of marriage.

Whatever the dreams of love, the marriage market or at least the mating market is a market like any other. We all have commodities to buy or sell, starting with youth, beauty, charm, earning power or wealth and going on to whatever qualities buyers in the market might want. Giving up any such commodity — say when a woman gives up her earning power to look after the children — is an opportunity cost and in a proper contract that ought to be recognised.

For people who are lucky, who continue to love each other and who stay married, it’s not necessary to think in these commercial terms. Their illusions can remain intact. They don’t have to wonder who contributed what or who never could have expected half as much on her own merits alone or was only after the money in the first place. For the rest, who divorce or separate, the contractual nature of their expectations becomes all too painfully apparent, but in retrospect.

Divorce will always be difficult. As Tolstoy said, all happy families are the same but all unhappy families are different, and it would be quite impossible to think of any principles in law that could be both universal and just. So the sensational and sensationally different cases that come before the courts tend to make the law look a bit of an ass.

That is why the time has come for prenuptial contracts — or perhaps pre-reproductive contracts for those couples who can’t face the actual word marriage. Prenuptial contracts could be designed by each couple as mutually agreed and detailed statements of intent, in all kinds of eventualities, so that each would know what to expect in the case of divorce.

Prenuptial contracts would, of course, mean much less work for lawyers, but that is another excellent reason for having them. I bet Parlour wishes he had had one.