I was just discussing this with a friend and I am reminded of an old post which I had on this topic.

Normally when people discuss a pre-nup, it is with the notion and context of “planning to fail”, like considering the possibility that the marriage would fail and providing an “escape route” out of it.

However, I don’t think it has to be that way. I think a pre-nup can be deployed to buttress the seriousness of a marital contract or promise.

Roughly, there is a distinction in legal theory between a “fault” divorce and a “no-fault” divorce. A “fault” divorce is one which is granted on the basis of some wrong doing by either party (e.g. adultery, physical abuse, abandonment, etc.), while a “no-fault” divorce is granted simply on a person’s say so or decision to end the marriage.

Before the advent of no-fault divorces, all divorces are based on wrong-doings, there is a distinction between the “innocent” party in a divorce and the “guilty” party, the wrong-doer. (A distinction which seems to go back as far as the Reformation where Melanchthon speaks of the injustice of Roman Catholics forbidding the “innocent person” in a divorce to re-marry.)

Family courts today unfortunately no longer take into account this element of human agency in a marriage, to distinguish between wrong doers and the innocent party. I think a pre-nup can bring back this element.

Although many Westernised societies no longer criminalise adultery, we still can bring back this element in a pre-nup. A pre-nup can stipulate that the “guilty” party or the party who has wronged his or her spouse would be liable to be cleaned out by the innocent party. He or she effectively “pays” for his or her breach of his marital promises in material terms.

This isn’t a matter of planning for an event of a failure. This is simply a very ancient and traditional form of oath-taking where we call upon ourselves retribution should we fail to uphold an oath as a demonstration of our sincerity. Oaths and vows have consequences, even in popular culture we still say things like, cross my heart and swear to die if we fail to uphold our end of the promise. Or as we say in Chinese, if I break my promise, 天打雷地!

In this context, a pre-nup is simply a very robust form of oath and vow taking. We vow to keep to our marital oaths or may God visit vengeance upon us, or may I be materially bankrupted. This isn’t planning for an “escape route” out of our marital promises, it is a demonstration of its sincerity, and encoding substantive material consequences to fall upon oneself should one fail to uphold one’s marital promises.

Normally we expect civil courts to recognise this distinction between the innocent and guilty party in the event of a divorce, but since they no longer do, I see pre-nups as a well to bring back this venerable and ancient form of making serious and robust promises, promises with real consequences for those who dares to break it.