Opposition Summary

The propositions case basically comes down to two things: 1. They say that pre-nuptial agreements are bad because people making these agreements are not fully rational 2. And that these kinds of contracts are open to abuse In support of the first point the proposition claims that pre-nuptial agreements are made while in love, they make the claim that “When you are in love you don't have the same perception and that gives the same effect of you not being under your full faculties, which is obviously, not able to take decisions.” So the proposition are saying that when in love people are not rational enough to enter into one contract – the pre-nup – but are rational enough to enter into another – the marriage. We think this is already a contradictory claim. The proposition claim that the pre-nup is a contract made to never be used. We challenge this as well. People that would agree to a pre-nup are the kind of people who actively opt out of a system the state is forcing unto them, and take matters into their own hands. If they sign a pre-nup to distribute their wealth fairly in case of a divorce, then they are the kind of people who acknowledge that divorce might happen. Therefore we conclude that they are more rational and with more foresight than people who get married without a pre-nup. The second point the proposition make is that pre-nups are open to abuse. They show this by hypothetical examples of how pre-nups can go wrong. They do not however show that pre-nups specifically are more prone to abuse than any other contract. They do not even prove that pre-nups are more open to abuse than the option offered by the state. We showed you that pre-nups are not considerably more open to abuse than the state splitting wealth as it sees fit. A pre-nuptial agreement is a means for people who find that the solution offered by the state would make them vulnerable to abuse (a rich person would be justified in worrying whether his/her partner is getting married only for the money, if their wealth was to be split 50/50 in case of divorce). Certainly changing circumstances can be taken into account. The Sunset provision and other similar provisions that are used in some places allows for pre-nups to be voided if certain circumstances change. This shows that we can protect parties of the agreement from abuse while still letting them make the agreement. As for requiring mutual consent: yes, that is the point of an agreement that both parties agree. If one party does not consent to changing the terms simply because he/she wants to abuse the contract, the other party can get legal protection from that kind of abuse as well. We opposed the propositions case by showing: 1. State does not always know best 2. Pre-nuptial agreements have benefits for the marriage What the proposition is proposing is that we take away the freedom of people to themselves draft an agreement of what they think marriage should be and how it should end, the proposition claims only the state knows the correct terms of marriage. We challenge that. We brought a comparison of the two systems and showed you why having optional pre-nuptial agreements available for couples is beneficial. We showed that pre-nuptial agreements allow for flexibility and specificity, for people to get exactly the kind of protection they think is best for them. People can get legal advice on what aspects of the marriage they specifically need to address in the pre-nup. If the state were to dictate to everyone the "correct" terms of marriage, this would leave a portion of people underrepresented. We brought examples of couples with different ideas of fidelity. If the state would have a blanket rule on all marriages, people in these marriages will find themselves vulnerable. Furthermore, we said that even if a pre-nuptial agreement produces undesirable outcomes, it is the result of the person’s active choice. In a free society we allow people to make their own decisions even if they lead to mistakes On the other hand we think that the state should not be forcing people into contracts that might be harmful to them. If harm is done to a person as a result of a law this person does not agree with, they will feel powerless, a victim of the legal system. The state should provide means for people to minimize the harms that might occur as a result of their actions – and even people who consciously opt out of the state definition of marriage by signing a pre-nup are still protected by the state just as signatories of any other contracts. People are more likely to have a better understanding of their own personalized pre-nuptial agreement than the laws governing marriage. We are not proposing mandatory pre-nuptial agreements for everyone, we are saying that there are many cases where the freedom to have such an agreement is beneficial to the couple. Benefits for the marriage We also claimed that pre-nuptial agreements have benefits for the marriage in case it needs to end in divorce. Having written down the terms of the marriage and the distribution of property will shorten the time of the legal battles associated with divorce because a large part of the arguing has been done beforehand in a non-traumatizing way (both parties consenting to a pre-nuptial agreement). This benefits the couple financially, as extended legal battles can be costly, as well as mentally, as they will not have to go through a painful divorce procedure and their children will not have to witness their parents fighting over who gets to keep the car and who gets to keep the house. We do not buy the propositions claim that “This motion deals with the legal basis of pre-nups, not with the psychological traumas of each individual.” In response to the propositions arguments we showed that there is nothing wrong with the legality of pre-nups, in our own arguments we showed that the pre-nuptial agreement is often a necessary and beneficial part of marriage. We think a law that allows marriages to be more happy is a good law. A law that allows pre-nuptial agreements is such a law. But the pre-nuptial agreement has benefits for the marriage even if the marriage does not end in divorce. It provides a sense of security, especially in a marriage of two people from different backgrounds. If both parties agree to a pre-nuptial agreement whereby the richer half of the couple protects his/her property from being split then both parties agree that they are not getting married as a means of getting rich. Moreover, pre-nuptial agreements are not only about sharing wealth in case of divorce. A pre-nuptial agreement contains the terms of the marriage, what each person needs to do to remain true to the spirit of the marriage. It allows for the couple to draft their vision of what they think their marriage should be. People might be deterred from getting married if there was not an option to protect themselves and their assets with a pre-nuptial agreement. In that case these people might be forced into a kind of partnership not recognized by the state. In case of marriage with or without a pre-nuptial agreement, if one party, the weaker side was abused the other, there would always be a chance to seek legal protection from abuse. If, however the couple were not in a kind of relationship that was recognized by the state, the weaker party would be completely without protection from the law. In such cases a housewife that was not married to her partner could easily be abandoned and left penniless. We consider this a huge harm. For the reasons we have given through out the debate - that we are not convinced by the proposition that contracts should not be entered into when under the influence of love (the proposition does not have anything against marriage itself); that pre-nups are not more open to abuse than other kinds of contracts; that, on the contrary, they allow people to protect themselves from abuse; that a system where people can freely define marriage for themselves is a better system than one where the state dictates this for them; and that having a pre-nup is beneficial for the marriage itself – we are proud to oppose the motion.