Lewis Grizzard, the American comedian and columnist, once said: “I don’t think I’ll get married again. I’ll just find a woman I don’t like and give her a house.” That’s the ultimate pre-nup, post-nup and non-nup wrapped into one. Not quite what law professor Baroness Deech had in mind when she called this week for pre-nuptial agreements to be made legally binding in England and Wales, as they already are in much of Europe.
The present system is the “very definition of arbitrary justice” says Anthony Julius, the lawyer who represented Princess Diana in her divorce from Prince Charles. But he disagrees with Lady Deech that enforceable pre-nups are the way to go. More important, he says, is wider legislative reform of the criteria judges use for dividing up assets and income.
For many years judges were required by statute to ensure that the parties’ post-divorce financial position remained the same as their financial position during marriage. This was plainly unworkable, and in 1984 the requirement was abolished. But in an act of stupefying legislative ineptitude, no other requirement was substituted. Since then judges have been left to fill the legislative gap, making things up as they go along, inventing rules to govern division of matrimonial assets, or “finding” them in the factors listed in the Matrimonial Causes Act 1973. Sometimes they divide up assets without regard to any principle at all, merely relying upon the aspirational quality of “fairness”. It has thus become almost impossible, when advising a divorcing husband or wife, to predict what the courts would decide in their case
Perhaps this sort of reform would curtail London’s days as the “divorce capital of the world”. London is to divorce as Niagara Falls is to honeymoons. Choosing London as your divorce venue so you get the most lucrative agreement is called “forum shopping”, according to lawyers Mills & Reeve. (By then the romance is long dead.)
But pre-nups have a place too. They were greatly strengthened in England this summer when Katrin Radmacher, one of Germany’s richest women, won a landmark case in London to protect her wealth from her ex-husband. No longer can it be said be said that prenups are meaningless.