Melanie McDonagh Melanie McDonagh

A prenup undermines a marriage before it has even begun

A friend of mine, quite a distinguished lawyer, takes the view that marriage ceased to make sense after no-fault divorces came in. What, he says sternly, is the point of a contract when there’s no sanction if you break it? Well, quite.

But if no-fault divorce pretty well invalidates marriage after the event, prenups do quite a good job of undermining it beforehand. The point of marriage is that it’s meant to be a lifetime affair – the hint being in the ‘til death do us part’ bit – and the point of prenups is that they make provision for the thing ending before it even gets underway. You’re putting your assets out of the reach of the spouse before you’ve got round to endowing her with all your worldly goods, if the Anglican service is your bag.

The cue for all this is the Law Commission’s proposals for a new approach to dividing assets after a failed marriage, which follow a four-year consultation. They’ll be presented to the Justice Secretary Chris Grayling this week.

So far as the case against it goes, I can’t myself improve on the remarks of the Bishop of Shrewsbury last week, which should be borne in mind by all those who like to sound off about bishops blaming the government for poverty but ignoring the breakdown of marriage. This was a bishop doing his job, addressing one of the causes of social breakdown. And what the Rt. Rev Mark Davies said was:

‘Our society would be proposing to couples seeking marriage that they prepare their own divorce settlement before making the life-long promises of marriage. 

‘It is a legal provision which would surely empty the words of the marriage promise “for better for worse… to love and to cherish till death do we part” of all meaning.

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