1. Pre-nups and the Marriage Bargain: giant
step forward or giant step back?
Anne Barlow
University of Exeter
Marriage Foundation
Notre Dame University, London
15th February 2013

2. Aims of presentation
• To consider research findings of study on public
attitudes to binding pre-nuptial agreements
• To consider public perceptions on the
importance of autonomy in couple relationships
• To consider public perceptions of importance
post-divorce fairness and pre-nuptial
agreements
• To reflect on what this means for the ‘marriage
bargain’

3. Empirical project
• Funded by the Nuffield Foundation, a two
phase 12 month empirical study was
undertaken to explore attitudes to pre-nuptial
agreements and to feed into the Law
Commission’s project on marital agreements
▫ First a nationally representative study using
structured questionnaires over two phases of the
NatCen omnibus in E&W (2,827 respondents) in 2010
▫ Second a follow up qualitative study was undertaken
with a purposive sample of 26 to probe thinking
behind these attitudes

4. Research questions
• What are public perceptions of pre-nuptial
agreements?
• How important is the freedom to make such a
binding agreement?
• Are people ready to use pre-nups culturally?
• Are there limits to public acceptability of such
agreements?

5. Method
• We used a mixture of attitudinal statements
plus scenario questions where the impact of the
pre-nup was compared with the current law
(pre-Radmacher)
• These were probed in the follow up qualitative
study in semi-structured interviews (post-
Radmacher)

6. National Survey Attitude Questions
• HOW FAR DO YOU AGREE -
• Binding pre-nuptial agreements are a good
way of allowing couples to decide privately
what should happen in the event of divorce
• Binding prenuptial agreements are a bad idea
because it is too difficult to predict what will
be fair at the end of a marriage
• If prenuptial agreements were binding, you
would be more likely to marry your current
cohabitant partner
• The longer the marriage, the less influence
pre-nuptial agreements should have on a
divorce court

7. Summary of National Views
Agree Disagree Neutral
17 14
20
32
20
18
22
53
65 66
58
15
Binding prenups are good way to Binding prenups are bad as can't Binding prenup would make me The longer the marriage, the less
privately agree divorce outcome predict what will be fair on divorce marry influence preunps should have

8. Reservations?
• Autonomy is therefore attractive, at least
superficially, but when probed in the scenarios,
people became less sure. Some like Frances, in
the qualitative study, thought the courts were
inherently fairer because –
The courts can look at the whole picture
• Jilly was aware of power imbalances -
I think if you have a bullying partner, it would go
on the side of the bully

9. National Attitudes- Legal Advice
How important is it for both partners making a
binding pre-nuptial agreement to take legal
advice?
%
Very important 75
Fairly important 19
Not very important 5
Not at all important 1
Unweighted base 2778
• No gender difference in responses

10. Imagine a couple Alison and Ben in their
late 20s getting divorced after just 2 years
of marriage. They have no children. Ben
earns £80,000, Alison earns £30,000. Just
before they married Ben inherited £500,000
from his father with which he bought the
family home outright in his sole name.
Under current law, if they had not made a
pre-nuptial agreement, the court would
impose its own solution and Alison would
receive a share of the home - probably
between a quarter and a half its value.
However, in fact, after both taking legal
advice, they did sign a pre-nuptial
agreement agreeing that Ben should keep
the inheritance in the event of divorce.

11. If they were to go to court, what do you think should
happen?
%
The pre-nuptial agreement should be binding. 60
As under current law, the court should impose
a solution which takes the pre-nuptial agreement
into account. 40
Unweighted base 2770
•Little gender difference – 61% men and 59% women
agreed it should be binding.

12. If they had been married 20 years rather than 2, with no
children, would your answer stay the same?
%
The pre-nuptial agreement should be binding. 46
As under current law, the court should impose
a solution which takes the pre-nuptial agreement
into account. 54
Unweighted base 1633
•Gender difference accentuated – 50% men and 40% women
now agreed it should be binding

13. Over a different amount of years I would think my opinion
would change. So sort of year one, I wouldn't expect to take
anything out of a relationship. Um. Year five, maybe a bit of
it. But by year 25, they’re going off with some young model
and [Laughs] leaving you and they’ve had the best years of
your life together and you were expecting to go into old age
together then, um, yeah: I would … [Laughs] I would go for
half of it, definitely. (Tamzin, married with prenup)
I think it should be binding but …it depends when it’s drafted
and it has to be reviewed properly. (Andrew, married father)

14. Now imagine the same couple married for 20 years. This
time they have two children aged 20 and 18 who have left
home and are both working. Alison gave up her job to care
for the children and has not gone back to work. They live in
the home Ben bought with the inheritance. Ben is earning
£80,000 a year. The home is now worth £800,000. Again
they had made a pre-nuptial agreement following legal
advice agreeing that Ben should keep the home in the event
of divorce and pay no maintenance.

15. This time, if they were to go to court, what do you think
should happen?
%
The prenuptial agreement should be binding. 16
As under current law, while taking the pre-nup into
account, the court should divide the value of the home
between them in a way that aims
to meet all their needs. 84
Unweighted base 2744
•Gender split – 18% men and 12% women agreed it should be
binding

16. • In the follow-up study, the majority similarly
agreed that Alison should not be held to the
pre-nup in these circumstances. Maureen took
the view that Alison had a raw deal:
• You know, if it was equal, yeah. Fair enough.
But if it’s like, um, ‘Right, you bring up the
children. You stay at home. I’ll make all the
money but the money’s mine’... No, that’s not
fair. (Maureen)

17. • However, a number of the men interviewed felt
that a hard-line approach should be taken if
pre-nups were to be a workable option:
• Frankly if you’re stupid enough not to have
covered the fact that you may have two
children and be married for 25yrs, then well
you haven’t covered the bases so that’s kind of
your own fault I think. (Rod)

18. If, in their pre-nuptial agreement, Ben instead agreed to
provide Alison with accommodation for a five year period
after divorce, but gave her no share in the property, should
the agreement be binding?
%
Yes, the prenuptial agreement should be binding. 28
No, as under current law, while taking the pre-nup
into account, the court should divide the value
of the home between them in a way that aims to meet
all their needs. 72
Unweighted base 2721
•Gender split 38% men and 24% women agree it should be

19. Should inherited home be shared?
[Yes.] Because then you’re married. You are a
unit; you’re not individuals any more and…
inheritance should count for the unit. It’s like
getting a bonus at work (Rebecca)
But not necessarily shared equally

20. Imagine another couple, Colin and Dawn who are in their 40s,
married for 10 years. Colin has run a successful small
business for some years; Dawn works as a model and has a
good income. The couple have an affluent lifestyle but have
no savings or health insurance. They recently purchased a
new home with a 100 per cent mortgage. Colin has a
serious heart attack and cannot work. As a result his
business fails and becomes worthless. Shortly afterwards,
the marriage breaks down.
They made a pre-nuptial agreement which agrees
neither will claim against the other’s income or business
assets on divorce.

21. What do you think should happen?
%
The prenuptial agreement should be binding 32
As under current law, while taking the pre-nup into
account, the court should require Dawn to provide
Colin with some income, at least for a period. 68
Unweighted base 2734
•Gender split – 38% men and 27% women agree it should be
binding

22. Shifting views of marriage?
• ‘If I was married to someone who became ill, I
don’t think it would be right for me to run off
and leave them. That’s my responsibility.’
(William).
• ‘Well they’ve only been married 10 years, so
what are you putting on the other party? A life
sentence to look after a disabled party? (Ellen)
• ‘I don’t like to see people responsible for other
people once they’ve split up. It doesn’t make
sense to me.’ (Sean)

23. A pragmatic response to re-marriage?
• My lawyer who I used for my second divorce,
he actually sort of talked to me about it,
because of what I had. He said, you know, “If
you do enter into a relationship or get married
again, Leila, do think very seriously about
having something in writing.” (Leila)
• [It] would protect my son should everything
fall apart, then at least he would be
guaranteed what is rightfully his. (Anna,
divorced, single mother)

24. New culture of pragmatism?
• Again, to me it is just like an insurance and as
long as you can talk about it openly and you’re
quite happy to just discuss any aspect of it, it
shouldn't cause a problem. (Rebecca, married
mother)
• It’s like when you write your will for the first
time. I hate it. I absolutely hate it, because it
makes me sit there and think about things I
don’t want to think about. So I think... it’ll
make them sit down and think about it and
what they’re entering into. This isn’t just for
fun. (Leila, divorced mother)

25. Impractical?
• When I set out, we were committed to having a
family and having children, and therefore I
think not knowing whether you can have
children as you plan, and when you have
children there are so many unknowns that
signing anything that organises your… predicts
your finances seems complete madness to me
(Clarissa, married mother)
• You're fixing something at a point in time that
reflects in that particular point in time, you
don't know how circumstances are going to
change (Leila, twice divorced, getting pre-nup for 3rd
marriage)

26. Inherently unfair?
The problem of making it binding is there’s no
flexibility for change of circumstances, so if
you ask me the question again I think life
changes and so there ought to be that
flexibility of interpretation in order to ensure
that it’s fair, and represents what’s fair at the
time a couple choose to split. (Clarissa,
married mother)
• We found older people and women generally
had reservations about pre-nups, with a very
strong age correlation on views about the
longer the marriage the less influence
appropriate.

27. A sign of commitment?
When, Dan and I …decided to actually marry
after being together for quite a while, I
volunteered that we’d sign a pre-nup
agreement because I know from his first
marriage that, he more or less had to start
from square one again. He left the house, um,
with all the equity with his wife and, um, you
know, literally set up from scratch again. So, I
deemed that that would be unfair should we
separate after...fairly soon, um, that he should
lose all the equity he’d got and, um, his
business and everything, for me to be able to
say, “I want half” straight away. (Tamzin)

28. National Attitudes – a minority
activity?
Thinking of your own marriage (or most recent marriage),
if the law permitted making binding prenuptial
agreements, would you have wished to negotiate a
binding agreement concerning the division of your money
and property on divorce?
%
Yes - I would 20
No - I would not 80
Unweighted base 1550
• Gender split – 21% men and 19% of women agreed

29. The effect of asking for a pre-nup
• I would have doubted her commitment to the marriage
(Thomas, married)
• No, I think it would have been a bit of a deal breaker, I
wouldn’t have gone for that. (Andrew, married father)
• If Tony said to me about a Pre-Nup I would say, "Oh don't you
trust me?” (Lydia, cohabiting)
• I must admit I’d be a little bit suspicious why somebody is
wanting to bring this sort of legal formality in at such a
stage. (Roger, single)
• Yes, I’d just think, why do you want a pre-nup? They’re
doubting me I think, like “Oh you’re going to take this away
from me”. (Susie, single mother, long term relationship)

30. Fairness and pre-nups- just
another contract?
I’m a little bit suspicious of pre-nuptial
agreements actually because it seems to me
that there could easily be one side who have
decided to put this contract out, knowing that
if the worst does happen, that they can either
get more than what they should perhaps be
entitled to or cheat their wife or husband out
of whatever. So at the end of day I’ve got a
feeling it shouldn’t perhaps be legally binding
totally like that, that on the point of divorce
that there should be considerations made on
the circumstances at the time. (Roger, single)

31. Autonomy can be dangerous?
If it’s something that you sign when you’re
early/mid/late 20s, with no experience of what it’s
like, you can’t even anticipate what it’s like, .. to have
children for your role to change. I remember when I
was working and I was pregnant for the first time, I
think I was in denial for the whole nine months
because I just couldn’t imagine what this little baby
was… I did go back to work at first because that was
just what you did, and it was only… and it took a while
for the changes for me to actually see. In fact it was
when my son came along two years later and I was
working full time, and I was doing the lion’s share of
looking after the children, and it was unsustainable.
But I couldn’t have seen that seven or eight years
previously, and I think that the inherent problem is you
see something with such clarity one moment, and then
with the passage of time it’s all changed completely
(Jilly, married mother)

32. Pre-nups undermining marriage?
… I think I said this right at the start, if you go
into a marriage anticipating that marriage
breakdown it’s just a very strange way to enter
into a marriage. (Jilly, married mother)

33. Conclusions
• Attitudes to pre-nups are changing - attitudes
are becoming more pragmatic and less
romantic?
• There are clear situations where people think
they are more appropriate
▫ [Short] marriages without children
▫ Where there are children of previous relationships
▫ Second and subsequent marriages
▫ To protect inherited wealth- some ambivalence re
home
• Some see pre-nups as undermining the essence
of (first?) marriage bargain
• The longer the marriage, the less appropriate –
suggestion of automatic expiry raised by many

34. Conclusions
• Autonomy seen as double-edged, particularly
for primary carer spouse
• Agreement seen as symbol of commitment by
some
• Some indication of gendered views on this issue
and some age variation
• Clear reservations by many where there are
children and where after time bargaining power
and autonomy unequal
• Some evidence of inherited wealth being
regarded as non-matrimonial property

35. • Further details of the study are in –
• Barlow and Smithson, ‘Is modern marriage a
bargain?’ [2012] Child and Family Law
Quarterly 304-319