Prenuptial agreements and the High Holy Days: food for thought

Relationships|Stowe Family Law|September 30th 2009

Prenuptial agreements are in the news again, and last Wednesday I had a conference at our Cheshire offices with Richard Todd QC. He is the lawyer who successfully persuaded the Court of Appeal to uphold the entirely one-sided prenuptial agreement in the Radmacher v Granatino case. Katrin Radmacher has managed to hold her entire £100million fortune intact after an eight year marriage. Mr Todd is a quiet, charming man – and devastatingly clever. My client is in very good hands.

It appears that there has been a huge rise in the number of people entering into prenuptial agreements, and on Thursday the BBC telephoned to ask if I could attend their studios in London for a live chat about prenups on Saturday morning.

However last Saturday was the “holiest” Sabbath Day in the Jewish calendar: the culmination of the penitential High Holy Days, which commenced with Rosh Hashanah (Jewish New Year) the weekend before and was followed by Yom Kippur (The Day of Atonement), which began on Sunday evening and ended last night. It is an intense period for reflection and self awareness. A period to consider what is right and acknowledge, no matter how hard it is, that which is wrong.

Reluctantly and with gritted teeth, after consulting with my conscience (aka my husband) and obtaining the expected response -“It’s up to you” – I regretfully declined the producer’s request. Instead, a cameraman was dispatched to my office, to prerecord an interview. “When?” I asked. “In an hour”, was the reply. It was a frantic afternoon but on Saturday, that recording went out every hour on BBC News and BBC News 24, throughout the day!

My comments were brief but I said I was against automatically legalizing pre-nuptial agreements, and would not marry if entering into one was a pre-condition of marriage. I also said that I thought the emphasis should switch from divorce reform to marriage. I was pleasantly surprised to receive many comments from people who went out of their way to say they fully agreed with what I had to say. It seems to me from the brief snapshot I received that “Middle England” could well be as concerned about the ease with which people enter into marriage as I am, and furthermore, finds the concept of legalizing unfair documentation, burdening still further the weaker party, morally repugnant;- adding more money in the lawyer’s pockets.

So was the decision to uphold Ms Radmacher’s prenuptial agreement morally right? But given recent indications from the present and likely future Governments that these agreements will be given full force of the law in the future, do moral considerations of “Middle England” even matter?

My comments on the BBC attracted some public thought-provoking comments. I entered into an interesting correspondence with Nick Gulliford, who blogs at School and Family Learning, about prenuptial agreements and the recent Every Family Matters report from the Centre for Social Justice. The subject also prompted a blog post from His Grace, Archbishop Cranmer, which has attracted dozens of comments and responses. They are also against the legalization of pre-nuptial agreements, although for different reasons.

I promised to think about the points raised and I have. Nick Gulliford and His Grace say that I am missing the point about prenuptial agreements. They raise the question of marriage within a religious context, of the entry by parties into a covenant, of the sacred nature of marriage and the indissolubility of marriage unless by mutual consent. Their argument does not seem to me too dissimilar from the Jewish religious position on divorce, wherein marriage may only be dissolved by mutual consent. It is a deeply religious perspective.

In The Times, Libby Purves puts forward a different point of view. Like Baroness Deech, these modern career women have deliberately narrowed their gaze to a few high profile cases. Like Baroness Deech, Ms Purves also seems to have missed the wider picture. It is fine to be ‘modern’ i.e. unafraid to criticize members of your own sex, if you are bright, affluent and have fantastic career opportunities in your own right. It is easy in those circumstances to call other women “greedy” and simply dismiss their cases. But what long term impact will their words have on divorce reform for tens of thousands of less wealthy but wholly dependent women who do not have the same career opportunities and never will have, innocently caught up in a hostile climate of media inspired change? Can’t they see the elephant trap they appear to have tumbled headlong into?

***

On Sunday, approaching the start of Yom Kippur, I read a very moving newspaper column written by Chris Woodhead, the former Chief Schools Inspector.  Mr Woodhead, who has motor neurone disease, wrote bravely and objectively about his condition and the likely nature of his death. I noted how, despite the ravages of his cruel illness, he savoured the pleasures that we often take for granted. He described the heightened beauty of the scenery around him and wondered if he will be here next year to enjoy it.

The Yom Kippur fast lasts for 26 hours, during which time no food or drink may be consumed. It is far from easy, and the thought of it coming up makes most people anxious. Can they do it? One friend of mine stops drinking coffee the week beforehand, to try and avoid a headache over a very long day. My preparation is a little different, and draws upon my years of running. I usually work out harder over several exercise sessions before the day. It’s about mental and physical endurance. I do more miles on the Wattbike, at a faster pace and with greater resistance. I reckon that if I can push myself that far, I can do the marathon, 26-hour fast!

This year the fast began at 6.30 pm on Sunday and ended at 7.39 pm on Monday. It always starts off okay but, as the hours slip by slowly and painfully, you do begin to feel rough and your head begins to throb. I don’t miss food, but I do miss drinking as I normally drink a lot of water. I went to visit my mum. It was a five mile walk and after 22 hours without food or drink I don’t recommend it – but I went to make sure she was ok. She was fine. Collapsed on her sofa, I wasn’t!

Later all my family sat down together to eat at my sister’s home. My sister-in-law, who lives on a farm, told everyone how she and two of her grown up children had gone for a walk in the afternoon. Exhausted, they had flopped down together in a field and watched the red kites circling overhead. She said that the countryside had never looked more beautiful to her. We talked about Chris Woodhead and how bravely he is facing his final journey. He has certainly inspired this family.

At the end of this lengthy, thought-filled and exhausting weekend, I have as promised thought about all the arguments. And my opinions about the continuing need to encapsulate fairness in the law? The need to truly temper justice with mercy? The need to protect the weak from the strong? The need to retain discretion? The need to respect but not necessarily to follow other countries legal systems?  No change.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comment(1)

  1. Nick Gulliford says:

    Actually, my view is very slightly different from how you describe it, Marilyn. Mine is not simply a ‘religious’ position – which it is – but it is also public policy in England to uphold marriage as exclusive and lifelong, therefore anything which undermines that – like making pre-nuptial agreements legally enforceable – is against public policy.

    However, since there is nothing to stop couples entering into them, I believe courts can take account of them, but should vary them if the outcomes would be manifestly unfair to one of the parties in the light of changed circumstances.

    Having said that, if divorce were only available by mutual consent, there would be no need for an enforceable pre-nuptial agreement as couples would themselves take account of their circumstances and come to a responsible decision – or not – in which case they would have to settle for a legal separation.

    There is one further point, if the Conservatives don’t want to make fools of themselves. They can’t – in my view – champion the cause of teaching children history and in the next breath chuck several thousand years of tradition out of the window without realising that children will see straight through it. Children will say, ‘hang on a minute, you expect us to learn and understand our history and traditions, and yet you politicians try to drop them as soon as you detect some minor notional political advantage’.

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