Prenuptial Agreement: Does It Make Marriage A Gamble or Business Enterprise?
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However, prenuptial is not legally binding in the United Kingdom. Although a couple intending to form a marriage relationship in the UK can make a prenuptial agreement, it is up to the court to honour it. The court can decide that such an arrangement is not legally binding in case of a marriage dissolution. Due to this lack of clarity, couples in the UK are often less willing to make a prenuptial agreement.
The argument often put forward by opponents of prenuptial agreement in the UK is that marriage should not be considered a business enterprise involving two persons. According to them the motivating factor for a business is profit making. Therefore, it is important that any parties forming such a business state in advance how such profits can be shared by means of an agreement. This agreement is often drawn on the basis of shares or contributions made by each of the parties to the business. However, a couple enters into a marriage relationship on the basis of love rather than on the basis of financial benefits. Therefore, making a prenuptial arrangement to protect each of the couple’s financial interest in case of a marriage break-up will undermine this basic principle.
The danger is that if the parties entering into a marriage cannot establish what they can get out of it in case of a marriage break-up, then marriage is nothing more than a gamble. A gambler cannot tell the outcome of his or her activity prior to commencing it. He or she can gain from it but he or she also can lose everything. Similarly, a wealthy person entering into a marriage without a prenuptial agreement is like this gambler. He or she cannot tell what can happen to the wealth previously acquired before the marriage in the event that it collapses.
Whereas in the absence of prenuptial agreement a wealthy person cannot determine in advance the fate of his or her wealth in case of a marriage break-down, the same cannot be said of a less well-off person forming a marriage relationship with a rich person. The court judgment regarding assets sharing between couples following a divorce has been consistent. The less well-off party has consistently received favourable judgment from the court during divorce.
Thus, young women who form marriage relationships with wealthy men twice their age tend to be accused of gold-digging. Critics however tend to refute this accusation by arguing that women marry men whom they think are capable of looking after them and any offspring they may have for the men in future. It is true that the man’s financial circumstances or prospect of it is one of the factors that a woman considers when forming a relationship with the man. Arguing, however, that it is the sole pre-requisite for the formation of a marriage will undermine the whole concept of love and affection in a marriage. In fact, it will be an insult to millions of women who have entered into a marriage relationship with poor men largely on the basis of love.
Having said this, allowing prenuptial agreement in a marriage because people apparently form it on the basis of love rather than on the basis of wealth will also produce winners and losers. The party that enters into such a relationship with little, for example, knows that he or she will come out of it with little if the marriage breaks down. Thus, he or she will try and do everything possible to preserve the marriage. In contrast, the party that enters into the relationship with much may not be too concerned about preserving the marriage. He or she is fully aware that in the event of a marriage break down, he or she can start a new life with the wealth acquired prior to the marriage.
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