One question comes to my mind in the wake of all the discussion of the Supreme Court’s recent ruling on pre-nuptial agreements: how does a pre-nup differ from the kind of marriage contracts under the system of private law administered by the Court of Equity which were used by the upper classes & the wealthy at least until the C19th in England, & which circumvented the common law which said that a wife & all that she owned were the property of her husband?
As Joan Perkin sets out in her book Women and Marriage in Nineteenth-Century England the women who were able to take advantage of this ‘were the most liberated group of wives in the country and perhaps in the world. How liberated they were depended on the size of their separate estates; but with even a modest private income assured to her separate use, a married woman had some choices about how to live her life.’
They ‘could lead much more independent lives than other women; they could travel at home or abroad, visit friends or relatives and thereby avoid the claustrophobia of marriages where the spouses depended on each other entirely; at times of conflict they could leave their husbands, since they could maintain themselves, and they could pay the costs of divorce (assuming there were sufficient grounds for action or it suited the husband to end the marriage).’
Of course one difference between then & now was that details of the contract would be settled by negotiation by the bride’s father or other male relative. One worry expressed by today’s objectors to the presumption in favour of pre-nups is that the bride will be negotiating on her own behalf & is more likely to be the weaker or more vulnerable party. Indeed one of the judges, Baroness Hale, went so far as to say that ‘some might think it ill-suited to a decision by a court consisting of 8 men & 1 woman.’ The implications (‘poor little things’) of this make me feel very uncomfortable
On the opposite side Baroness Deech has argued strongly that ‘the awards to wives of very rich men, especially wives who have no children or have never worked outside the home, are not in keeping with the independence and equality of women, but amount to a signal to young women that they are better off marrying a footballer than pursuing a career.’
