Ayesha Vardag, described as ‘Britain's top divorce lawyer’ after her landmark Supreme Court win to make pre-nups work in England, looks at the impact of the new law in practice for modern women, using Cinderella as an example.
Cinderella thanked her lucky stars that she had met the handsome prince to take her away from her dark existence in a large corporation. She loved their wonderful holidays and their beautiful home. She loved it that she didn't have to work any more except for fun. She loved having his beautiful children and sending them to the best schools.
The only dark cloud that ever crossed her horizon was that the handsome prince just never quite agreed to marrying her. She knew that was because of what his advisers had told him - that England was the divorce capital of the world; that if, like almost half of marriages, theirs broke up she would get at least half of everything he had built up over their marriage just for being married to him. That even assets he had had before he met her could be passed to her in their millions to meet her ‘need’ to maintain her lifestyle, even after a short and childless marriage. That prenuptial agreements, used throughout the world, don't work in England, so the only way for him to protect himself from that kind of divorce risk was just to not to get married.
This bothered Cinderella. She didn't want to take all his money. She wanted to be fair. It wasn't her fault the law was the way it was. She just wanted to regularise her family. She wanted to be married. She knew, somewhat vaguely, that if they broke up now, she would have nothing, nothing in her own right to reflect the years she had put into supporting his princely career and bearing his children. She could be cast aside with some child maintenance and a house on trust until the children grew up and she was out on her ear with her best years behind her. It was all or nothing.
Then one day, the handsome prince came home with an engagement ring. Through her happiness, Cinderella asked the prince, what's brought this on? "Prenuptial agreements work now", said the prince. "There's been a big case. They're applied unless they're unfair. It's great!" Oh, said Cinders, somewhat downcast. And indeed the course of negotiating their pre-nup, with the lawyers fighting hard for their corners on the chance that their beautiful wedding would be off if they couldn't find common ground, was a difficult and challenging one. They both had teams that were sensitive, though, and kept their eye on the ball, making sure they got a positive result and enabled, rather than derailed, the wedding.
What they worked out, between them, was nothing like what she would get on divorce after years of prosperous marriage without a pre-nup. But it was 100 times more than she would have if they broke up unmarried. Now she could go forward into a marriage, with the sense of security that brought her and her children, while having the real security that if they broke up she would come away with what they had agreed - a decent house in her own right and enough money to live reasonably until she was able to make herself independent.
She had got that much because, her lawyer had told her, a prenuptial agreement needs not only to be fair at the point you make it- i.e. you knew what you were doing, there was no duress, you had sufficient time to consider it before the marriage, etc- but it also has to be fair at the point it is applied. So nobody ends up on the street with nothing just because that's what they signed up to.
It's a delicate balance, playing the law, pitching for what's fair, aiming on both sides to get an agreement that looks reasonable enough for it to stick. And then, you hope, you put it away in a drawer and you never have to look at it again. Cinderella sighed.
A few years down the line and Cinderella had left the handsome prince. She had built up, from her secure base she got under the pre-nup, her own business and become a big player in her own right. She was a woman of substance. She did not depend on anyone.
One day, she chose to let herself fall in love again. They lived together but she just wasn't sure about getting married. Now she was the one with a lot to lose. Even if she was tempted to become a shameless romantic herself and throw caution to the winds, she had her children's interests to look out for, their legacy, the security she had worked to build up for them. She couldn't risk anything so she went back to her lawyer. Together, they worked out a package that was likely to stick. Having calculated her risk, and having told her partner that these were the breaks if they were going to tie the knot, they signed up a rock solid pre-nup and off she went into her second family with everyone knowing what they were doing. And they lived happily ever after, partly fortified by the knowledge that they could get out if they had to without years of battling through the courts and hundreds of thousands of costs.
Cinderella could see that it was tough on women who signed up to pre-nups and got a lot less on divorce than they would have had without one. But they learned that a pre-nup had to be fair so it would never be too harsh. And it made all kinds of practical sense, and enabled them to get on with the lives they wanted to have. Other than for religious reasons in some communities, there is very little social imperative to marry now. Children born out of wedlock generally suffer no stigma. Marriage has to be a choice, for both parties, and in order to make both choose it they have to feel they can deal with all the consequences, including the consequences of breaking it up. So pre-nups are good for the women with the money and the women without. The first because they get more security and a better deal married with a pre-nup than they do unmarried, the second, a growing community of monied women, because they can marry for love and romance and still protect their hard-garnered asset base.
Perhaps the biggest and most satisfying breakthrough of all, however, is dispelling the old inbuilt presumption of female inequality in the law. The judges agreed in Radmacher, with our position that it was "paternalistic and patronising" to suggest that women were so desperate to get married they'd sign up to anything so they shouldn't be held to it. As if the desire for a Mills and Boon ending rendered otherwise competent women mentally incapable. We can't have it both ways. We can't expect to be given equal pay and equal opportunities and be genuinely viewed as equal beings unless we're clear we can make our own decisions and stick with them. And we can. We can broker our agreements and be held to them and require our men to hold to theirs. As we chip away at the sexism in our legal system and our society and make the changes that our times and reality of our lives require, we level the playing field and we earn the respect that we deserve.
We can take our own place at the table. With the right advisors and the right support, which we're perfectly capable of choosing, we can do anything, for ourselves. If we have a man look after us, that's because we want to, because it feels nice to have that, not because we need to, any more than they need us. That's what changing the law on marriage has meant to me and what it will mean to my daughters after me: the recognition that we can make our own decisions, we have something worth protecting for ourselves, and marriage, well, we'll do it if we want to but that's no longer a given. That's what was really at stake in the Supreme Court, and that's the legacy that's playing out for women in its aftermath.
By Ayesha Vardag, Managing Director of Vardags
