Marriage: an institutionalised incentive to gold-digging

Marriage: an institutionalised incentive to gold-digging | Lionel Shriver | Comment is free | The Guardian

Pre-nups aren't pretty, but they protect us from a law that says because you love someone they have a claim on everything you own

Before they married in 1998, the German heiress Katrin Radmacher and her then-fiance, Nicolas Granatino, drew up a legal document promising that, if they divorced, neither would go after the other's money. Yet, when the couple separated in 2006, Granatino did just that. The supreme court decision to uphold their original contract may herald a new era, in which prenuptial agreements are finally accorded standing in British courts.

Alas, this week's ruling awards poor Granatino only £1m in lieu of maintenance for the couple's two daughters, a London residence that will be returned to Radmacher when the younger of their two daughters reaches the age of 22, and another property in France for the same period, while Radmacher has already paid off his £700,000 in debts. His lawyers claim this pittance leaves Granatino facing "bankruptcy, financial ruin, and destitution", although these attorneys might invest in a dictionary, the better to clarify what "bankruptcy", "ruin", and "destitution" actually mean.

Family lawyers are warning that this decision may bring on a torrent of so-called pre-nups now that the contracts are no longer treated like toilet roll in British jurisprudence. But would that be so terrible?

Formal declarations of mistrust, pre-nups are emotionally unfortunate. They overtly plan for failure, and thus involve a jarring cognitive dissonance. On the one hand, couples are vowing to be true till death parts them; on the other, they're already hammering out the details of their divorce. But when nearly half of British marriages do end in divorce, practicality may get the better of romance, especially for those who bring considerable assets to the relationship.

Thus couples that can bear the contamination of an otherwise joyful celebration should have their agreements honoured. For British courts to have hitherto invalidated pre-nups has been high-handed, like British marital law in general. In the UK, divorcing couples don't have assets divided 50-50. It's worse than that. The courts can do whatever they want.

However unattractive, pre-nups are at least a way round a law that dictates simply because you love someone and share their bed, that person has a claim on everything you own. In a time when women had little or no ability to support themselves, a husband's monies being legally regarded as joint assets helped to protect the wife. But these days both sexes have access to the workplace, and the protection that women like Katrin Radmacher require isn't from helpless penury, but from rapacity – the greed of ex-husbands who violate what should be legally binding contracts to turn divorce into a nice little earner.

A just, fully contemporary divorce law would obviate pre-nups altogether by recognising the morally obvious. Yes, all households incur joint running costs; but, when my husband earns £500, that is his money, not mine. If "we" buy a house but I pay the deposit and the mortgage, that house is mine. If my husband owned £10,000 in shares before we married, I do not deserve to remove any of those shares from his possession if we split. Western workers do not toil for collective farms called families; they are paid as individuals. Whether they wish to pool assets with a partner is their business, not the state's.

When one spouse has raised children while the other works, the division of spoils in divorce is more complex. Yet the law is fully capable of quantifying the value of childcare and lost earnings without blindly handing over to a stay-at-home spouse an untold proportion of what the working spouse has accrued.

As it is, little wonder marriage has plummeted in popularity. "I do" forfeits all control over your earnings, possessions and finances. You can't be sure that if you buy a house you can keep it, even if the title is in your name. Should you divorce, there's no guarantee that the courts will distinguish between your earnings of £150,000 per annum and your spouse's salary of £12,500. Under the present system – an institutionalised incentive to gold-digging – a pre-nup codifies the fairness that the law does not. For British courts to finally accord these contracts legitimacy provides people a measure of protection from the caprices of the courts themselves.

In the perfect world no one would need pre-nups. But all too often a misty-eyed romancer at the altar transforms into a vengeful, avaricious fiscal predator when the marriage goes south. A pre-nup is an insurance policy or, in brokerage terms, a short hedge – meant to mitigate a high-risk investment. It safeguards the love-struck from their own poor judgment of character.