Prenuptial agreements and the presumption of free choice : issues of power and autonomy in theory and practice

• Main Author: Thompson, Sharon
• Published: Queen's University Belfast 2013
• Subjects: 346.01662
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.603425

On divorce, the court determines how spouses' property is divided. If couples want to make this determination for themselves, entering a prenuptial agreement is one way of doing so. Yet whilst prenuptial agreements give couples the right to make autonomous decisions, this does not necessarily mean both parties have actually exercised their autonomy. Drawing on data from a study on practitioners' experiences of prenuptial agreements in New York, this thesis will show t hat prenuptial agreements are fraught with issues of power and autonomy, and that these issues are not always recognised by the court. The free choice of parties to a prenuptial agreement is often presumed, while the complexity of the parties' relationship is ignored. In order to address the analytical weaknesses inherent in the current judicial approach to prenuptial agreements, as articulated in Radmacher v Granatino [2010J UKSC 42, the theoretical framework employed in this thesis will consider feminist and contractual perspectives. An aim of this framework is to produce a more nuanced understanding of the autonomy experienced and exercised by parties entering into prenuptial agreements. Furthermore, this theoretical approach aims to expose power imbalances, particularly along gender lines, which other perspectives on prenuptial agreements overlook. Finally, this thesis will explore how the court might address concerns with power and autonomy during the drafting and enforcement processes of prenuptial agreements, in a way which appreciates the relationship between the parties, thus providing a more convincing approach to the role that prenups can play in the judicial allocation of spousal property on the breakdown of marriage.