Master presentation (3)

Modern Marriage: Myths, Realities and Prospects

Divorce: Facts and Myths

• Up or down? • Seven year itch?• Silver surfers?• Marriage rates? • Recession?• Second marriages

Harry Benson

Official divorce rates

0

2

4

6

8

10

12

14

16

1963 1973 1983 1993 2003

year of divorce

per '000 marriages

Actual divorces: 1970 couples

0

5

10

15

20

25

30

0 10 20 30 40

years married

per '000 marriages

Myth 1 : Marriage is changing

0

5

10

15

20

25

30

35

40

0 10 20 30 40

years married

per '000 marriages

19651975198519952005

Myth 2 : “Seven year itch”

0

5

10

15

20

25

30

35

40

45

0 3 6 9

years married

per '000 marriages

1970198019902000

Myth 3 : “Silver surfers”

0

2

4

6

8

10

12

14

16

18

20

10 20 30 40

years married

per '000 marriages

1965197519851995

Myth 5 : Divorce is rising

0%

5%

10%

15%

20%

25%

1963 1973 1983 1993 2003

year of marriage

1st decade2nd decade3rd decade4th decade

Boom and bust years

0.0%

1.0%

2.0%

3.0%

4.0%

0 5 10 15 20 25 30 35 40

1980 bust1983 boom1991 bust1994 boom2003 boom2008 bust

years married

Myth 5 : “Recession”

-100%

-80%

-60%

-40%

-20%

0%

20%

40%

60%

80%

100%

0 5 10 15 20 25 30 35 40

1980 bust1983 boom1991 bust1994 boom2003 boom2008 bustyears married

Myth 6 : All about who marries

0

50

100

150

0 20 40 60 80

Marriage rates

Divorce rates

1st 5 years2nd 5 years3rd 5 years

The pattern of second marriages

0

10

20

30

40

0 5 10 15 20

per '000 couples

First for bothFirst for husbandFirst for wifeSecond for both

years married

Myth 7 : “Second marriages”

0

100

200

300

400

500

0 5 10 15 20

per '000 couples

First for bothFirst for husbandFirst for wifeSecond for both

years married

Myth 8 : Divorce rates rising

0%

10%

20%

30%

40%

50%

1963 1973 1983 1993 2003

year of marriage

Today’s divorce rate is 39%

0%

10%

20%

30%

40%

0 10 20 30 40

years married

Key predictors of success

Bad Habits

Good Habits

Attitude

How NOT to value - STOP

S – Score Points T – Think the

worst O – Opt out P – Put down

Love Languages

Time Words Actions Gifts Touch

Dedication

USFAMILY

FUTURE

FRIENDSCOHABIT

MORTGAGE FLAT

MARRIAGE

CHILDREN


PROFESSOR REBECCA PROBERT

THE MYTHS OF HISTORY

REVISING INITIAL ASSUMPTIONS

• Original assumption that cohabitation had been common in the past

• … disappeared upon inspection of the original sources

• New resources now available in digitized form• Legal • Parliamentary• Newspapers• Marriage records

KEY POINT NO. 1: COMMON-LAW MARRIAGE HAS NEVER EXISTED

• The ideas that before 1754 it was possible to marry by a simple exchange of vows, or that couples who lived together would be presumed to have married…

• …derived from a nineteenth-century American court misunderstanding English precedents

HOW COHABITANTS WERE ACTUALLY TREATED BY THE LAW…

KEY POINT NO. 2: COHABITATION WAS FAR LESS COMMON IN THE PAST THAN NOW

• The standard view: in contrast to the 1950s and 1960s… ‘earlier periods show greater similarity in terms of cohabitation and “illegitimacy” with recent decades’ (Professor Albert Weale, preface to Happy families? (British Academy, 2010))

BIRTHS OUTSIDE MARRIAGE, 1600-2010

1600

1620

1640

1660

1680

1700

1720

1740

1760

1780

1800

1820

1840

1860

1880

1900

1920

1940

1960

1980

2000

0

5

10

15

20

25

30

35

40

45

50

THE IMPACT OF DIGITAL RESOURCES

Dunkirk and Hernhill Kilsby0

10

20

30

40

50

60

70

80

90

100

NEITHROP, 1851

• Occupied by the ‘poor and persons of bad character’

• Claimed that in Gould’s Buildings‘five of the eight houses were … occupied by cohabiting unmarried couples’

IN REALITY…

• Actually only two out of eight at any given time• Of the 847 households examined:

• 629, or (74%) headed by a couple • Marriages traced for at least 95% and possibly 98.5%

‘I know as much as one can know such a thing – that she had not lived with S. during the time of our acquaintance – and that she had had a good deal of that same with me.’

‘LIVING TOGETHER’?

MAYHEW’S COSTERMONGERS

• ‘[o]nly one-tenth – at the outside one-tenth – of the couples living together and carrying on the costermonging trade, are married’.• H Mayhew, London Labour and the London Poor (1851)

THE COSTERMONGERS’ RESPONSE

• ‘downright falsehood’

• condemnation of ‘the conduct of Mr Mayhew, in publishing statements calculated to prejudice a great body of individuals struggling over all difficulties to get an honest living, without investigating the character of his informants, or requiring them to substantiate such statements.’

LAW AND BEHAVIOUR

•Punishment•Deterrence•Minimization

KEY POINT NO 3: DATING THE EMERGENCE OF THE COMMON-LAW

MARRIAGE MYTH

• Research has established that a majority of cohabitants and the population at large believe that there is such a thing as ‘common-law marriage’ which gives them similar rights as if they were married

HOW DID THE COMMON-LAW MARRIAGE MYTH EMERGE?

• 1960s: term began to be applied to cohabitation

• Early 1970s; opponents of the ‘cohabitation rule’ argued that this should not apply to all cohabitants but only those living in ‘common-law marriages’

• Individuals began to ask what rights they have as a result of their ‘common-law marriage’

NEW RIGHTS AND HOW THEY WERE REPORTED…

• Inheritance (Provision for Family and Dependants) Act

• ‘[if] a Bill now going through Parliament were law now, she would as a common-law wife automatically be entitled to a share in a “husband’s” estate.’

(Daily Express, 1975)

PROPERTY RIGHTS

• ‘“Security” for common-law wives’ (The Guardian)

Rings on their Fingers (1978)

‘Did you know,

Oliver, that I am entitled to a third of your flat?’

BIRTHS OUTSIDE MARRIAGE, 1971-2001

1971 1976 1981 1986 1991 1996 20010

50000

100000

150000

200000

250000

300000

Same address

Different address

Joint registration

Sole registration

SUMMARY

• English law never recognised common-law marriage and cohabitation was vanishingly rare in earlier centuries

• The extent of cohabitation was broadly consistent with its legal treatment until the 1970s

• The emergence of the ‘common-law marriage myth’ in the late 1970s was followed by a significant increase in cohabitation


How similar are cohabitation and marriage? Demographic trends and legal approaches

across Western Europe

Research funded by

European Research Council Starting Grant CHILDCOHAB

Centre for Population Change

Brienna Perelli-Harris

University of Southampton

http://www.cpc.ac.uk/

Increase in cohabitation

43

. Austria

.

.

.

.

Belgium

.

.

.

.

Bulgaria

.

.

.

.Estonia

.

.

.

. France

. .

.. Italy

.

.

.

Netherlands

.

.

.

.Norway

.Poland

..

..

Romania

..

..

Russia

..

.

.

Spain

.

.

.

.

United Kingdom

.

.

USA

010

20

30

40

50

60

70

80

90

10

0P

erc

enta

ge h

avi

ng e

ver

coh

ab

ited

Pre-1940 1940-49 1950-59 1960-69 1970-79Birth cohort

Proportion of women reporting ever cohabiting by country

44

Increase in childbearing within cohabitation

Source: Harmonized Histories Database

1970-74 1975-79 1980-84 1985-89 1990-94 1995-990

10

20

30

40

50

60

First births in cohabitation

Per

cen

t

Estonia

Norway

France

Austria

UKNDLUSA

RussiaBulgaria

Spain

HungaryRomania

Poland

45

Non-Marital Fertility in Europe 1960

Kluesener, Sebastian, Brienna Perelli-Harris, and Nora Sánchez Gassen. 2012. “Spatial Aspects of the Rise of Nonmarital Fertility across Europe since 1960: The Role of States and Regions in shaping Patterns of Change.” European Journal of Population.

46



47



48



Overarching Research Question

How and why has cohabitation and childbearing within cohabitation spread

throughout industrialized nations,And what are the consequences for children

and families?

Nonmarital Childbearing Network www.nonmarital.org

Changes in marriage and cohabitation

1. Trends 3. Consequences2. Explanations

Harmonized Histories

Qualitative data

Policy analysis

Focus group research in 10 countries

Survey dataGenerations and Gender Surveys

Survey dataGenerations and Gender Surveys

Legal approaches across Western Europe

51

Brienna Perelli-Harris and Nora Sánchez Gassen“How Similar Are Cohabitation and Marriage? Legal Approaches toCohabitation across Western Europe”Population and Development Review 38(3) : 435–467 (September 2012)

Do state policies influence couples’ choices between cohabitation and marriage?

ORDo states enact new policies in response to changing behavior?

→ Number of policies

→ Approach of policies

Equality between cohabitation and

marriage

Differences between marriage

and cohabitation

Analytical framework

Data

• 9 Western European countries• National level legislation• Legal situation in 2010

during relationship

relationship breakdown

in case of death

Income tax systems

Health insurance

Social Security

Financial maintenance

Adoption and assisted reproduction

Foreigners‘ rights

Alimony

Division of property and household goods

Debts

Remain in deceased partner’s apartment

Survivor’s pension

Inheritance rights and tax

Relationship between partners

19 policy dimensions

Establishment of paternity Joint Custody Naming of children

Unmarried fathersand children

Quantity and Approach of Policies

• Number of laws: Law (explicit)

Law (implicit)

No law

• Coherence of laws: Neutrality towards cohabitation (Neutrality)

Some differences between cohabitation and marriage (In Between)

Completely different rights for cohabiting and married couples (Difference)

Source: Authors’ analyses based on legal documents and literature

Quantity and Approach

Example: Policy database for England

1. During cohabitation

Income taxHealth

insuranceFinancial

maintenanceSocial security

Reproductive technology

Adoptions rights

Residence permit

Acquisition of citizenship

No law No law No law Law (explicit) Law (implicit) Law (explicit) Law (explicit) No lawNEUTRALITY NEUTRALITY DIFFERENCE NEUTRALITY NEUTRALITY NEUTRALITY NEUTRALITY DIFFERENCE




2. Relationship breakdown

3. After death of one partner

Right to remain in rented appartment

Inheritance rights Inheritance tax Survivor's pension

Law (explicit) Law (explicit) No law No law

NEUTRALITYINTERMEDIATE

POSITIONDIFFERENCE DIFFERENCE

Household goods Assets Alimony Debts

No law No law No law No lawDIFFERENCE DIFFERENCE DIFFERENCE NEUTRALITY




4. Cohabiting fathers and their children

Legal treatment of cohabitors in England is inconsistent:

Cohabitation is mentioned in some laws; in other policy areas, cohabitants are ignored by the law

Cohabitors share the rights of married couples in some policy areas; in other policy areas, differences remain

Paternity J oint custody Family name

Law (implicit) Law (implicit) Law (implicit)INTERMEDIATE

POSITIONNEUTRALITY NEUTRALITY

Quantity

59Nethe

rland

s - R

Franc

e - R

Norway

Sweden

Nethe

rland

s - U

Austri

aSpa

in

Switzer

land

Franc

e - U

Englan

d

Germ

any

0

2

4

6

8

10

12

14

16

18

No national legislation

No laws

Implicit laws

Explicit laws

Nu

mb

er

of

po

licy

are

as

Number of policy areas in which cohabitation is explicitly, implicitly, or not mentioned in the law, by country

Approach

60Nethe

rland

s - R

Sweden

Franc

e - R

Norway

Nethe

rland

s - U

Engla

nd

Austri

a

Spain

Franc

e - U

Ger

man

y

Switzer

land

0

2

4

6

8

10

12

14

16

18 No national leg-islation

Marriage and cohabitation treated dif-ferently

Intermediate position on marriage and cohabitation

No difference between mar-riage and co-habitation (neu-trality)

Nu

mb

er

of

po

licy

are

as

Number of policy areas in which the approach to cohabitation is similar to marriage (neutrality), different from marriage, or in an intermediate position, by country

Conclusions• Caveats:

– Choice of policy dimensions (single mothers?)– Weighting of different policy areas

• Substantial variation in the extent to which countries have legislated on cohabitation.

• While countries are moving towards legislating cohabitation, marriage remains a distinct institution.

Policy recommendations• Further research is needed to better understand

how or whether policies impact behavior

• Difficult to advocate a particular solution without further knowledge about the consequences of different family structures, and the consequences of those family structures in specific contexts.

62

• If laws and regulations are expanded to incorporate cohabitation, what does that imply for the institution of marriage?

• If marriage is no longer the sole state-sanctioned relationship for raising children, will children become irrelevant for decisions to marry?

• As the legal function of marriage becomes less important, will marriage take on different social meanings, such as status symbol or indicator of emotional commitment?

Many questions!


Prenups – Front Line ExperienceAyesha Vardag Founding Director [email protected] 0044 (0) 2074049390 www.vardags.com

Modern Marriage:

Myths, Realities and

Prospects


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 1

Unweighted 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 shouldhappen?

%

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


•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?

%


As under current law, the court should impose a solution which takes the pre-nuptial agreement into account. 54


•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


•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 72into account, the court should divide the valueof the home between them in a way that aims to meet all their needs. Unweighted 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


•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

Pre-nups and the Marriage Bargain: giant step forward or giant step back?

Anne BarlowUniversity of Exeter

Marriage FoundationNotre Dame University, London15th February 2013

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 1


•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?

%


As under current law, the court should impose a solution which takes the pre-nuptial agreementinto account. 40


•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?

%


As under current law, the court should impose a solution which takes the pre-nuptial agreement into account. 54


•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


•Gender split – 18% men and 12% women agreed it should be binding

• In the follow-up study, the majority similarly agreed that Alison should not be held to the pre-nup in these circumstances. Maureen took the view that Alison had a raw deal:

•You know, if it was equal, yeah. Fair enough. But if it’s like, um, ‘Right, you bring up the children. You stay at home. I’ll make all the money but the money’s mine’... No, that’s not fair. (Maureen)

•However, a number of the men interviewed felt that a hard-line approach should be taken if pre-nups were to be a workable option:

•Frankly if you’re stupid enough not to have covered the fact that you may have two children and be married for 25yrs, then well you haven’t covered the bases so that’s kind of your own fault I think. (Rod)

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 valueof the home between them in a way that aims to meet all their needs. 72


•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


•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

•Further details of the study are in – •Barlow and Smithson, ‘Is modern marriage

a bargain?’ [2012] Child and Family Law Quarterly 304-319


Deborah Jeff• Founding Partner, Family Department

UK Cohabitation and Marriage Survey

• A unique nation-wide survey of marriage, cohabitation and commitment, commissioned by Seddons in collaboration with The Marriage Foundation.

• Undertaken on our behalf by OnePoll between December 2012 and January 2013.

• 3,500 adults polled across 9 regions in England and Wales.

UK-wide Survey

National survey results for our 13 key questions are cross-referenced by additional data such as:• Gender• Region• Age• Relationship status• Employment status, partner's employment status;• Salary, partner's salary• Dependents.

Demographic

• Covered nine regions of the UK

• 63% female and 37% male. Of these respondents, 48% were already married, 21% were cohabiting and the remainder were single (17%), in a relationship (9%), divorced (3%), widowed (1%) or separated (1%).

• Age range: 18-55+ • Some 69% of married respondents had children (between one and four),

compared to 19% of cohabiting respondents and 5% of singletons. Just over 1% of divorced respondents had children.

Questions we wanted to explore:

• Why is the myth of common law marriage so prevalent?

• Are shared financial commitments important for a couple?

• Do people plan for them?• Do they influence marriage decisions?

Do you hope to be married one day?

• More than twice the number of people who didn't want to be married in their lives (23%), did aspire to marry in future (56%), with both genders of respondents answering almost identically (Yes: F-58%,M-53%, No: F23%,M-23%). A quarter of men polled said they weren't sure, compared to a fifth of women.

• Employment status range, the highest proportion of respondents by grouping who said they aspired to be married was by far 'Students' at 73%, with Employed people at 60% and Homemakers at 40%.

• After the Retired group, the Unemployed group least likely to want to get married (just 1 in 3).

What shows you’re serious about your partner to family and friends?

Respondents answered:• 45% - living together;• 30% - getting married;• 12% - having their child;• 9% - buying a house together.

If cohabiting, why not get married?

Reasons given for not tying the knot:

a. Cost of the wedding (42%) b. 25% overall were waiting for their partner to ask them,c. 20% just hadn't got around to it yetd. 28% thought marriage wasn't necessary.e. Around 12% - been put off by other people's divorces.f. 15% - because they couldn't afford to buy a house together. g. 11% - didn't like the expectations that being married to their partner would place on them.

What is the greatest display of commitment in a couple?

a. Having partner’s child.

b. Closely followed by: getting married, buying a house together and including them in your will .

c. Moving in together and opening a joint bank account , lesser signs of commitment to a relationship.

d. There was a leap of up to a third in the proportion of people from the age groups

within 18-44, to the age groups within 45-55+, who rated the highest way of demonstrating commitment within a relationship by getting married.

e. Buying a house together unanimously popular across all age ranges, and having a

joint bank account together doubled in importance for the age group 55+, from all other age groups.

Markers of Commitment % rating 10 out of 10 as way of showing commitment within a couple

Cohabiting Married Aged 18-24

Getting married 35 49 41

Moving in together 14 11 13

Buying a house together 30 23 25

Having a baby 51 41 47

Buying a pet together 5 4 6

Opening a joint account 7 11 9

Including them in your will 20 20 20

Would you happily have children with your partner without a pre-,post- or co-nup?

• Split down the middle with 53% saying "Yes" and 47% saying they wouldn't. Slightly more men than women said they would be happy to do this (Yes-M:56%,F52%), compared to 48% of women who said they wouldn't and 44% of men who said they wouldn't.

• Nearly 60% of 35 to 44-year-olds would be happy to bring up children this way, but this percentage falls to 44% by 55+.

• Response figures were generally the same between people who already had children and those who did not.

Should couples share finances?• 82% thought it was important in a relationship, as opposed to just 18%

who said they didn't think it was important.

• Almost all married and cohabiting couples shared most of their official financial commitments (current account, mortgage, household bills),

• In terms of savings, married couples who shared were nearly double the percentage of those who just lived together.

• People who earned more than £50k p/a were significantly more likely than those on lower salaries to share a current or savings account with a partner.

What finances are you sharing?

• The three biggest commitments were:a. 49% - a joint bank account ;b. 41% - a joint mortgage or rental agreement;c. 40% - household bills.

• Lower priority bills by importance were joint credit cards at 27% and loans for which both partners are responsible (11%).

• Respondents were twice as likely to share a credit card with a partner who earned more than £80k p/a as they were with a partner who earned £25k p/a or less.

Have you discussed the fate of shared finances if you were to part?

• 82% had not discussed how their shared financial obligations would be dealt with in the event of a break-up. This figure was equal for men and women. (Yes-F:18%,M:19% -- No-F:82%,M:81%).

• Likelihood of discussing obligations decreases with age from 18-24 at 21%, down to the last age group of 55+, by which time this had fallen to just 14%.

• Percentages were similar regardless of whether in a married, cohabiting or non-cohabiting relationship. They were also similar regardless of whether they had children or not.

Should separating spouses get more of an ex-partner’s assets than a cohabitee?

• Nearly a third of respondents thought that married people should be entitled to a greater share of each other's assets and future income than cohabitees;

• But: 42% thought this should be the same whether you are married or cohabiting.

• Around a quarter of people (26%) said they didn't know how the legal system governing who gets what on separation should operate.

Do divorce courts’ powers to decide how assets are divided put people off marriage?

• Nearly a third - courts powers on divorce were more likely to discourage marriage.

• 58% who said it wouldn't make any difference to them, or they didn't know. Figures for this were roughly the same for responses from men and women.

• Earners of £50k+ p/a believed that courts ruling on how assets are split on divorce was more likely to encourage marriage.

• More than three times the number of respondents whose partner was unemployed thought court judgement on assets would discourage them from getting married, compared to those whose partner was employed.

Could you learn to relate better?• 69% said "Yes", with a quarter of those admitting there were

issues they should discuss but don't or can't, a quarter saying they could learn to handle disagreements better, and a fifth saying they could learn to understand or support each other better.

• Figures were broadly the same for both sexes when asked these questions; except for 35% of men saying they couldn't learn to relate better, compared to 28% of women who said they couldn't.

• Interestingly, figures were largely consistent across the whole spectrum of age groups.

Preparation for a Union• 83% did not access any relationship education or marriage preparation

before or in the first few years of marriage or cohabitation. • Divorced respondents = highest proportion among all groups at 92% with

no pre-relationship preparation. • 25% of students (the highest proportion) said that they had sought advice. • Respondents were considerably more likely to have sought

pre-marital/cohabitation advice when they earned £50k p/a or more. • Those with between 2 and 4 children with their partner were more than

double as likely to have sought advice prior to marriage/cohabitation than those who had no children.

“We are deeply concerned that so few people access relationships education at an early stage in the relationship. It is good that most people recognise that they can learn to relate better, and we are committed to promoting better access to relationships education.”

Sir Paul Coleridge, The Marriage Foundation

Deborah Jeff

Founding Partner, Family Department

UK Cohabitation and Marriage Survey

• A unique nation-wide survey of marriage, cohabitation and commitment, commissioned by Seddons in collaboration with The Marriage Foundation.

• Undertaken on our behalf by OnePoll between December 2012 and January 2013.

• 3,500 adults polled across 9 regions in England and Wales.

UK-wide Survey

National survey results for our 13 key questions are cross-referenced by additional data such as:• Gender• Region• Age• Relationship status• Employment status, partner's employment status;• Salary, partner's salary• Dependents.

Demographic

• Covered nine regions of the UK

• 63% female and 37% male. Of these respondents, 48% were already married, 21% were cohabiting and the remainder were single (17%), in a relationship (9%), divorced (3%), widowed (1%) or separated (1%).

• Age range: 18-55+ • Some 69% of married respondents had children (between one and four),

compared to 19% of cohabiting respondents and 5% of singletons. Just over 1% of divorced respondents had children.

Questions we wanted to explore:

• Why is the myth of common law marriage so prevalent?

• Are shared financial commitments important for a couple?

• Do people plan for them?• Do they influence marriage decisions?

Do you hope to be married one day?

• More than twice the number of people who didn't want to be married in their lives (23%), did aspire to marry in future (56%), with both genders of respondents answering almost identically (Yes: F-58%,M-53%, No: F23%,M-23%). A quarter of men polled said they weren't sure, compared to a fifth of women.

• Employment status range, the highest proportion of respondents by grouping who said they aspired to be married was by far 'Students' at 73%, with Employed people at 60% and Homemakers at 40%.

• After the Retired group, the Unemployed group least likely to want to get married (just 1 in 3).

What shows you’re a couple to family and friends?

Respondents answered:• 45% - living together;• 30% - getting married;• 12% - having their child;• 9% - buying a house together.

If cohabiting, why not get married?

Reasons given for not tying the knot:

a. Cost of the wedding (42%) b. 25% overall were waiting for their partner to ask them,c. 20% just hadn't got around to it yetd. 28% thought marriage wasn't necessary.e. Around 12% - been put off by other people's divorces.f. 15% - because they couldn't afford to buy a house together. g. 11% - didn't like the expectations that being married to their partner would place on them.

What is the greatest display of commitment in a couple?

a. Having partner’s child.

b. Closely followed by: getting married, buying a house together and including them in your will .

c. Moving in together and opening a joint bank account , lesser signs of commitment to a relationship.

d. There was a leap of up to a third in the proportion of people from the age groups

within 18-44, to the age groups within 45-55+, who rated the highest way of demonstrating commitment within a relationship by getting married.

e. Buying a house together unanimously popular across all age ranges, and having a

joint bank account together doubled in importance for the age group 55+, from all other age groups.

Markers of Commitment % rating 10 out of 10 as way of showing commitment within a couple

Cohabiting Married Aged 18-24

Getting married 35 49 41

Moving in together 14 11 13

Buying a house together 30 23 25

Having a baby 51 41 47

Buying a pet together 5 4 6

Opening a joint account 7 11 9

Including them in your will 20 20 20

Would you happily have children with your partner without a pre-,post- or co-nup?

• Split down the middle with 53% saying "Yes" and 47% saying they wouldn't. Slightly more men than women said they would be happy to do this (Yes-M:56%,F52%), compared to 48% of women who said they wouldn't and 44% of men who said they wouldn't.

• Nearly 60% of 35 to 44-year-olds would be happy to bring up children this way, but this percentage falls to 44% by 55+.

• Response figures were generally the same between people who already had children and those who did not.

Should couples share finances?• 82% thought it was important in a relationship, as opposed

to just 18% who said they didn't think it was important.

• Almost all married and cohabiting couples shared most of their official financial commitments (current account, mortgage, household bills),

• In terms of savings, married couples who shared were nearly double the percentage of those who just lived together.

• People who earned more than £50k p/a were significantly more likely than those on lower salaries to share a current or savings account with a partner.

What finances are you sharing?

• The three biggest commitments were:a. 49% - a joint bank account ;b. 41% - a joint mortgage or rental agreement;c. 40% - household bills.

• Lower priority bills by importance were joint credit cards at 27% and loans for which both partners are responsible (11%).

• Respondents were twice as likely to share a credit card with a partner who earned more than £80k p/a as they were with a partner who earned £25k p/a or less.

Have you discussed the fate of shared finances if you were to part?

• 82% had not discussed how their shared financial obligations would be dealt with in the event of a break-up. This figure was equal for men and women. (Yes-F:18%,M:19% -- No-F:82%,M:81%).

• Likelihood of discussing obligations decreases with age from 18-24 at 21%, down to the last age group of 55+, by which time this had fallen to just 14%.

• Percentages were similar regardless of whether in a married, cohabiting or non-cohabiting relationship. They were also similar regardless of whether they had children or not.

Should separating spouses get more of an ex-partner’s assets than a cohabitee?

• Nearly a third of respondents thought that married people should be entitled to a greater share of each other's assets and future income than cohabitees;

• But: 42% thought this should be the same whether you are married or cohabiting.

• Around a quarter of people (26%) said they didn't know how the legal system governing who gets what on separation should operate.

Do divorce courts’ powers to decide how assets are divided put people off marriage?

• Nearly a third - courts powers on divorce were more likely to discourage marriage.

• 58% who said it wouldn't make any difference to them, or they didn't know. Figures for this were roughly the same for responses from men and women.

• Earners of £50k+ p/a believed that courts ruling on how assets are split on divorce was more likely to encourage marriage.

• More than three times the number of respondents whose partner was unemployed thought court judgement on assets would discourage them from getting married, compared to those whose partner was employed.

Could you learn to relate better?• 69% said "Yes", with a quarter of those admitting there were

issues they should discuss but don't or can't, a quarter saying they could learn to handle disagreements better, and a fifth saying they could learn to understand or support each other better.

• Figures were broadly the same for both sexes when asked these questions; except for 35% of men saying they couldn't learn to relate better, compared to 28% of women who said they couldn't.

• Interestingly, figures were largely consistent across the whole spectrum of age groups.

Preparation for a Union

• 83% did not access any relationship education or marriage preparation before or in the first few years of marriage or cohabitation.

• Divorced respondents = highest proportion among all groups

at 92% with no pre-relationship preparation. • 25% of students (the highest proportion) said that they had

sought advice. • Respondents were considerably more likely to have sought

pre-marital/cohabitation advice when earning 50k+ p/a.

“We are deeply concerned that so few people access relationships education at an early stage in the relationship. It is good that most people recognise that they can learn to relate better, and we are committed to promoting better access to relationships education.”

Sir Paul Coleridge, The Marriage Foundation



Documents

Master presentation (3)