Conservatives propose to reduce marriage covenant to a contract – The BBC reports that it is emerging Conservative Party policy to make pre-nuptial agreements binding, as they are in many EU countries.
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From the excellent Cranmer Blog
The BBC reports that it is emerging Conservative Party policy to make pre-nuptial agreements binding, as they are in many EU countries. Henry Bellingham, the shadow justice minister, said: “We want to bring in a fairly wide-ranging divorce law reform bill and I’m very keen that part of it will include pre-nups and make them enforceable in law, subject to very strict safeguards.”
Some ‘family’ (divorce) lawyers disagree: Marilyn Stowe said: “The whole emphasis is on divorce reform – and I actually think we should be looking much more at marriage. I have to say if I was asked to enter into a ‘pre-nup’ I wouldn’t.”
Marilyn Stowe argues: “I am married and I advocate marriage for those who wish to commit in that way. But I am also prepared to recognise that everyone has the right not to do so. I believe that the law should be available to all families, not just the select few – and certainly not the innocents who currently ‘make do’ with the odd CSA cheque and a hotch-potch of inadequate legislation.”
Cranmer is grateful to his faithful communicant Mr Nick Gulliford for bringing this to His Grace’s attention and for pointing out the manifest deficiencies of this argument:
1. Virtually all the parties to this ‘debate’ seem to be making a fundamental mistake of treating marriage as a ‘contract’ rather than a ‘covenant’. Because it is a covenant it does not lend itself to the kind of legal impositions that politicians and lawyers are seeking to place upon it.
2. One consequence of this is that a divorce should only be granted when there is mutual consent by the parties which is the same as that with which they entered the marriage. Only if the marriage was forced should the courts should have unilateral power to negate it.
3. If the ‘hotch-potch of inadequate legislation’ that covers cases involving children of parents who are not married is not working, then politicians must devise better legislation. But if couples are determined not to marry, to try to impose upon them the marital commitments they have sought to avoid is silly. At present the tax and benefit systems impose penalties on poor married couples, which is equally silly. Poor people are unlikely to marry if it attracts penalties. The arguments for not making pre-nuptial agreements binding in law are even stronger than Marilyn Stowe imagines.
4. Making a pre-nuptial agreement (preparation for divorce) legally enforceable would strike a serious blow at current public policy which is to support marriage as a lifelong commitment. Anything that undermines that would alter a fundamental aspect of public policy which has been part of our tradition for centuries. Indeed, the covenant relationship between God and his people and Christ and His Church have been likened to that of the commitments of spouses, so there is a long history behind it.
5. Even the people supporting enforceable pre-nuptial agreements, like Henry Bellingham, the shadow justice minister, always add the caveat ‘subject to very strict safeguards’, which means the courts would always have the ultimate power to set aside any agreement they did not like, which is really the same as saying these agreements cannot be made enforceable anyway. If couples choose to enter into pre-nuptial agreements and they can only divorce by mutual consent, there is no need for them to be enforceable.
It seems to Cranmer that by entering the covenant of marriage and swearing before God “til death us do part” is utterly negated if a pre-nuptial divorce agreement has preceded the swearing of the sacred vow. Indeed, it is difficult to see how anyone in conscience could take the vow if there has been legally-binding preparation for “til I think it’s no longer working”.
One wonders how long it will be before the Lord’s covenant with His people will be undermined by Parliament and the courts – subject, of course, to very strict safeguards.
Tags: Law Moral Ethical, Politics