Last week a commenter called Sara left a lengthy response on a post about prenuptial agreements, for which I was very grateful. I read it through several times and instead of replying to her in the comments, I decided to write a post about the points she raised.
For me, Sara’s comment was well-timed, coming as it did after the Law Commission had published its provisional proposals for the legal status of prenuptial agreements. An editorial of mine had just been published in the Yorkshire Post. In it, I concentrated on the emotional impact of prenups. I noted that in my experience, the resulting power imbalance between a couple can serve to increase hostility and resentment. Far from saving a marriage, a prenuptial agreement may be the cause of its irretrievable breakdown.
Although Sara isn’t married, I wonder if her words don’t add weight to this argument:
“There are people like myself, who have been in a 10-year-plus relationship, who have never been married but would very much like to get married. My partner is divorced, has been stung by his ex wife who took everything she “was entitled” to – although she had never worked, lazy and contributed very little, hence why the marriage broke down. He now, even though I have had the same job for last 15 years, pay my way, have a mortgage with him albeit in unbalanced shares, and his proposal was “subject to you taking the same percentage out of the house as you financially contributed” (approx 10%), I can have a car and that’s it.
“I work very hard, I am the driving force behind home, I organise everything and quite frankly, he would be lost without me. We will never be on the same salary – he earns a lot – I earn approx 0.25 of his salary. But do you really think that is fair? I am now 40 years old, being asked to consider children out of wedlock – which yes is possible but not something I am comfortable with in the slightest. Do you also think it is fair that our relationship should be “because we choose it”? No – it is because of what happened to my partner in his divorce and he doesn’t want to have that happen again. Do you think it’s fair that because of his situation, I either can stay as a partner, never have the experience of a marriage ceremony, and God forbid should I sign the document and something goes wrong, I end up having to start all over again whilst he stays in the house, benefits from all my hard work (decoration etc) and I end up working the same hours as I did when I first scraped together the deposit on my first flat, which was sold to put the funds into the house? And if I have a child – I would have that to contend with too?
“Is security of a marriage not a two-way thing? Is it no longer about knowing the person before you marry them? I am 40 as I’ve said, my partner is 47. We have been together for over 10 years, known each other for 12 years and that apparently, holds absolutely no value. What for me would be a fair document in the event of a split (i.e. keep the proportional split in the house but split 50/50 any increase in the value of the house) is apparently not acceptable.
“Quite frankly, am sick to death with it all! I cannot blame my partner – it is the law that stops things being about values and instead about deal breakers before you head down the aisle…….marvellous!”
So let’s summarise Sara’s position, which I would describe as unhappily unmarried. She has been in a relationship with her partner for 12 years. She has actually been cohabiting with him for 10 of those years. When they began living together, they agreed that they would own their house in unequal shares, the same as their respective financial contributions, and that when the house was sold, the net proceeds would be split in those same proportions. They agreed nothing else, because Sara didn’t see the need or perhaps had no choice, because her partner has been divorced. He has had one divorce payout, and he did not wish to be “caught out” again. So this was the only deal to which he would agree and Sara went for it.
Despite the passage of time, all that they have shared and done together, all she has done for him, for them both, his position has not changed. He won’t marry her, even though he would appear to know full well of all her fears about finances as she gets older. He knows that she works hard in the relationship. He knows too of her perception that the contribution she has made deserves greater recognition. But he won’t budge or alter his deal. It’s take it or leave it for him.
Sara, on the other hand, is increasingly anxious. She has become acutely aware that her own contribution to the relationship has been completely undervalued. His former wife did far better and never worked, although she presumably made her own contributions. His former wife had needs, which the court recognised. Such is the value of marriage in current law.
There is little that Sara can do about her own situation which, probably correctly, she assesses as more financially valuable than that of her partner’s former wife. But once bitten, he won’t even agree a prenup. He won’t change his mind. Why should he?
As far as she can make out, in law she can only be pinned into place by the equivalent of a watertight prenup, which her partner holds in the palm of his hand. Worse still, from what I can gather, it appears to be only on that basis that he would have a child with her. She has given and given. Now she is finding out that he intends to stick to this quasi agreement. She is being held to her bargain.
The decision is now hers. Does she stay or does she go? Clearly, she has no chance of convincing her partner to marry. If he won’t even give a child of his the stability, comfort and security of marriage, what will convince him?
Sara blames his former wife and our current divorce law for her predicament. But I don’t. The decision was his, is his and remains his. He could alter his position at will, but he won’t.
So what does Sara do?
The Law Commission is proposing that clauses in prenups would be overturned if they made insufficient provision for children. So if Sara did marry and was held to a prenup under the terms described above, she could legally obtain provision for her child. This would be exactly as the court ordered for Mr Granatino’s children, even though they dismissed his own claims and held him to his prenuptial agreement, unfair as that prenup appeared to be.
But Sara isn’t married. Can the law help her?
One option, of course, is that she could simply walk away. Perhaps she would rather live alone than be part of an unequal relationship that causes her such distress. She could take it on the chin, cut her losses and start again. He might even miss her, recognise he loves her… and who knows? Anything is possible when emotions are involved.
If he remains immovable, should she willingly bring a child into the relationship? That is a difficult question, and is one for Sara to answer.
But if Sara did decide to bite the bullet and have a child, her situation in law would dramatically change if her relationship with her partner broke down. Ironic, isn’t it? She would be able to make financial claims against him – and he would not be able to contract out of them. A Carer’s Allowance, payable to Sara during her child’s minority, would be calculated in a similar way to spousal maintenance, plus housing, lump sum and income claims for the child.
Overall, however, if proof of the appalling impact that a binding prenup can have upon the weaker spouse is required, this is it. And there isn’t even a prenup.