Public Attitudes to the Marriage Bargain

Anne Barlow and Janet SmithsonUniversity of Exeter

Marriage BargainsNuffield Foundation4th December 2012

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’

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

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?

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)

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

5865

15

66

2218

53

20

20 17

32

14

Binding prenups are good way to privately agree divorce outcome

Binding prenups are bad as can't predict what will be fair on divorce

Binding prenup would make me marry

The longer the marriage, the less influence preunps should have

Summary of National ViewsAgree Disagree Neutral

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

National Attitudes- Legal AdviceHow 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 5Not at all important 1Unweighted base 2778

• No gender difference in responses

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.

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 agreementinto account. 40

Unweighted base 2770

•Little gender difference – 61% men and 59% women agreed it should be binding.

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

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)

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.

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

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. 72Unweighted base 2721

•Gender split 38% men and 24% women agree it should be binding

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

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.

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

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)

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)

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)

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)

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.

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)

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 20No - I would not 80Unweighted base 1550

• Gender split – 21% men and 19% of women agreed

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)

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)

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)

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)

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

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