e price of love
We can hear the groans from out there in cyberspace. What is this, a reform or another
signpost on the road to marital oblivion? Why are you lawyers always looking for ways to
derail relationships? Why don't the courts use their powers to persuade couples to stay
together rather than helping them to move apart? Does a prenup mean the couple don't love
each other? Are we facing the abyss?
Perhaps the critics are right, a prenup is the cold shower that cools the passions
before marriage, but perhaps that's the way it should be. After all, there is plenty of
empirical evidence to suggest that nearly one in two marriages will fail anyway, so isn't
it better to be prepared? And why are couples scared to discuss a potential future
breakdown of the relationship? Sometimes it has less to do with naïveté or a conviction
that the marriage will survive all obstacles, and is more an indication that there are
other issues that have also not been discussed, or that the mutual expectations of the
couples are not clearly understood. And where expectations are not revealed there will
often be the likelihood that resentment and anger will settle over the relationship.
Second time around
Statistics tell us that many divorced couples are not twice shy, in fact most of them
survive their divorce and marry again. This is where a prenup can be crucial. By this time
the bloom of first love has faded - let's be honest, by now we are instead jaded. More
importantly, partners in second marriages are usually in their later thirties and forties,
by which time they have accumulated some assets and enough cynicism to want to hold onto
them. Not to mention the children they need to provide for.
"Sign here, darling"
So how would you feel when presented with the prenup? Would you be prepared to see it
for what it is, a method of planning little different than a will or a power of attorney,
or would it set your teeth on edge? This is another example of the great divide between
legal theory and practice. Listen to your lawyer and you would have everything in writing,
see every accident as an opportunity for litigation and every broken step a potential
claim for negligence. But your lawyer is not your spiritual advisor, let alone a confidant
or friend. In the next few months you will read many entreaties to sign one of these
agreements, accompanied by lucid and undoubtedly sensible arguments about the virtues of
forward planning.
And they're right, of course. It's just that lawyers and legal commentators have little
to say about character, or our feelings about our loved ones, or even the way we define
ourselves. Are you the sort of person who can look at a prenup and not feel threatened by
the circumstances it contemplates? Are you so secure in your relationship that you do not
fear courtly words on a legally binding document? If so, go for it, because it may save
you much anxiety down the track.
But what if you see a prenup as a caveat that will hang over your marriage like a
cloud? What of those of us who are not sufficiently secure to ignore those nagging doubts
that assault us in the wee hours? For this group it might be entirely proper to ignore the
push for rational planning. But more importantly, lawyers will have to find ways to assure
this group that it is really in their best interests, and not just in the interests of
further work for the legal profession, to see these agreements as objectively prudent
planning for the future.
And for those die-hard romantics who choose to look only on the bright side of the
marriage road? To you we say good luck, and may you never see the inside of a family
lawyer's office.
By Geoffrey Winn
Creative Director
www.law4u.com.au