Pre-nuptial agreements – A good route to autonomy?

Thompson, Sharon ORCID: https://orcid.org/0000-0002-2569-856X 2024. Pre-nuptial agreements – A good route to autonomy? Financial Remedies Journal 2024 (2) , pp. 163-167.

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Abstract

Every family lawyer knows that the validity of pre-nuptial agreements (pre-nups) is at the mercy of the judge’s discretion, yet a freely entered agreement that is not unfair will be given decisive weight. This authority stems from the landmark case of Radmacher v Granatino [2010] UKSC 42, where the Supreme Court ended longstanding ambivalence over the enforcement of such agreements, holding that nuptial agreements are to be given effect by the court out of ‘respect for individual autonomy’. This article considers whether the current legal status of pre-nups does indeed promote autonomy. It is argued, first, that the court frequently avoids the question of whether autonomy has been exercised. The second part of this article explores research evidencing why this is problematic. Autonomy is a nebulous concept, and when it is simplified, neutralised, individualised and de-gendered, it is often assumed. The concept of neo-liberal autonomy has been a powerful influence on policies surrounding family breakdown in recent years. This version of autonomy focuses on the individual, who is expected to seek the best deal for themselves. Yet, if the reality of how individuals make decisions is to be appreciated then it is important to challenge the idea that, in contracts, autonomy simply means a rational and voluntary choice. Particularly in the complex realm of intimate family law agreements, it would be fair to ask whether individuals ever make completely voluntary, rational choices. While neo-liberal notions of autonomy are built on assumptions that decision makers are independent, self-interested and rational actors, relational autonomy asserts that ‘[t]o be autonomous is not to be isolated and free of responsibility, but to be in a network of relationships, with their dependent responsibilities’. Our autonomy when making these decisions is inherently impacted by relationships with others, and the relationships with those we are entering into agreements with. As a result, this article urges circumspection regarding autonomy in the neo-liberal sense. In the context of nuptial agreements, blind respect for this type of autonomy favours the party with greater bargaining power, often at the expense of the interests of the non-moneyed spouse, because the power struggles in the relationship are not adequately recognised. Such defects in the exercise of autonomy are not fully appreciated when agreements are set aside primarily to meet needs. Thus, in the final sections, it is suggested that if nuptial agreements are to be made binding in England and Wales, the American Law Institute’s proposals provide an example of how legislation could go some way towards explicitly recognising the issues of power affecting such agreements.

Item Type:	Article
Date Type:	Publication
Status:	Published
Schools:	Law
Subjects:	K Law > K Law (General) K Law > KD England and Wales
Date of First Compliant Deposit:	15 October 2024
Date of Acceptance:	16 May 2024
Last Modified:	07 Nov 2024 16:15
URI:	https://orca.cardiff.ac.uk/id/eprint/169277

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