PRENUPTIAL AGREEMENTS AND THE PRESUMPTION OF FREE CHOICE issues of power in theory and practice;issues of power in theory and practice

This book provides an alternative perspective on an issue fraught with difficulty â?? the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spouses and civil partners to make autonomous decisions about the division of their property on divorce. Yet this book demonstrates that, in the attempt to promote autonomy, other issues such as imbalance of power between the parties become obscured. This book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, it attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements. This book also draws on an empirical study of the experiences and views of practitioners skilled in the formation and litigation of prenuptial agreements in New York. Finally, it explores how the court might address concerns with power and autonomy during the drafting and enforcement processes of prenuptial agreements, which in turn may enhance the role that prenups can play in the judicial allocation of spousal property on the breakdown of marriage. Cover Half-title Title Copyright Dedication Preface Acknowledgements Contents List of Abbreviations Table of Cases Table of Legislation Note on Terminology Introduction Background Power Theoretical Perspectives Employed in this Book Contract Theory Feminist Critiques of Contract Chapter Outline 1. Radmacher v Granatino and the ‘New Respect’ for Autonomy Background Cases Before Radmacher Proposed Reform Before Radmacher Radmacher v Granatino Radmacher in the Lower Courts Supreme Court Public Policy Cases after Radmacher Proposed Reform after Radmacher The Law Commission’s Report Matrimonial Property, Needs and Agreements Divorce (Financial Provision) Bill Re-evaluating the Radmacher View of Autonomy Conclusion 2. The Developing Landscape of Financial Provision on Divorce Financial Provision Prior to the Matrimonial Causes Act 1973 Marriage Settlements and the Common Law Doctrine of Coverture The Effects of Separate Property Prior to the Matrimonial Causes Act 1973 Financial Provision Under the Matrimonial Causes Act 1973 Judicial Discretion to Award Financial Provision (Ancillary Relief) Non-discrimination and Equality The Three Strands of Fairness Need Compensation Sharing Prenuptial Agreements and the Three Strands of Fairness Reform of Financial Provision Conclusion 3. Attorneys’ Experiences of Prenuptial Agreements in New York Why New York? The Law of Prenuptial Agreements in the United States The Law of Prenuptial Agreements in New York Summary of Findings Background to the Study Attorneys’ Experiences of Prenuptial Agreements in New York Reasons for Entering into an Agreement The Balance of Power Between Parties to a Prenuptial Agreement Addressing Issues of Power in Practice Steps Taken by Individual Attorneys Remaining Issues Advice for the UK Comparative Analysis ‘Prenuptial Contracts’ Fiduciary Relationship Comparing New York with the UK Issues with Power Postnuptial Agreements Conclusion 4. Remedies in Contract for Prenuptial Agreements Introduction Duress Background ‘Prenuptial Duress’ Difficulties with ‘Prenuptial Duress’ Undue Influence Actual Undue Influence Background Application to Prenuptial Agreements Difficulties with Applying Actual Undue Influence to Prenuptial Agreements Presumed Undue Influence Background Application to Prenuptial Agreements Difficulties with Applying Presumed Undue Influence to Prenuptial Agreements Unconscionability Background Application to Prenuptial Agreements Difficulties with Applying Unconscionability to Prenuptial Agreements Conclusion 5. Towards a Feminist Relational Contract Theory of Prenuptial Agreements Introduction ‘The Theory is a Mess’ Classical Contract Theory Neo-classical Contract Theory Relational Contract Theory Critique of Mainstream Contract Theory Relational Contract Theory and Prenuptial Agreements Feminist Perspectives on Prenuptial Agreements Feminist Responses to Issues with Power and Autonomy in Contract Using Feminism to Re-evaluate Prenuptial Autonomy Feminist Relational Contract Theory The ‘Feminomics’ of Prenuptial Agreements—Guggenheimer’s Approach Distinguishing Guggenheimer’s Approach from Feminist Relational Contract Theory Conclusion 6. Prenuptial Agreements and the Presumption of Free Choice—Connecting Theory and Practice Applying Feminist Relational Contract Theory to Prenuptial Agreements Before Enforcement Independent Legal Advice The American Law Institute Applying Guggenheimer’s Theory in Practice Moving Forward—Altering Guggenheimer’s Approach and Applying Feminist Relational Contract Theory in Practice (Before Enforcement) Applying Feminist Relational Contract Theory to Prenuptial Agreements at the Time of Enforcement Adapting Vitiating Factors According to Feminist Relational Contract Theory Duress Presumed Undue Influence Taking a ‘Second Look’ at Prenuptial Agreements at the Time of Enforcement Developing a ‘Non-bargain’ Approach for Prenuptial Agreements Re-visiting Radmacher v Granatino Lady Hale Lord Phillips Radmacher v Granatino and Feminist Relational Contract Theory Conclusion Conclusion Bibliography Index Présentation de l'éditeur : "This book provides an alternative perspective on an issue fraught with difficulty ... the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spouses and civil partners to make autonomous decisions about the division of their property on divorce. Yet this book demonstrates that, in the attempt to promote autonomy, other issues such as imbalance of power between the parties become obscured. This book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, it attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements. This book also draws on an empirical study of the experiences and views of practitioners skilled in the formation and litigation of prenuptial agreements in New York. Finally, it explores how the court might address concerns with power and autonomy during the drafting and enforcement processes of prenuptial agreements, which in turn may enhance the role that prenups can play in the judicial allocation of spousal property on the breakdown of marriage." "This book provides an alternative perspective on an issue fraught with difficulty & the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spousk692.ces and civil partners to make autonomous decisions about the division of their property on divorce. Yet this book demonstrates that, in the attempt to promote autonomy, other issues such as imbalance of power between the parties become obscured. This book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, it attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements. This book also draws on an empirical study of the experiences and views of practitioners skilled in the formation and litigation of prenuptial agreements in New York. Finally, it explores how the court might address concerns with power and autonomy during the drafting and enforcement processes of prenuptial agreements, which in turn may enhance the role that prenups can play in the judicial allocation of spousal property on the breakdown of marriage."--Bloomsbury Publishing. "This book provides an alternative perspective on an issue fraught with difficulty & the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spousk692.ces and civil partners to make autonomous decisions about the division of their property on divorce. Yet this book demonstrates that, in the attempt to promote autonomy, other issues such as imbalance of power between the parties become obscured. This book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, it attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements. This book also draws on an empirical study of the experiences and views of practitioners skilled in the formation and litigation of prenuptial agreements in New York. Finally, it explores how the court might address concerns with power and autonomy during the drafting and enforcement processes of prenuptial agreements, which in turn may enhance the role that prenups can play in the judicial allocation of spousal property on the breakdown of marriage."--Résumé de l'éditeur This book provides an alternative perspective on an issue fraught with difficulty – the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spouses to make autonomous decisions about the division of their property on divorce. Yet this book demonstrates that, in the attempt to promote autonomy, other issues, such as imbalance of power between the parties, become obscured. This book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, it attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements. This book also draws on an empirical study of the experiences and views of practitioners skilled in the formation and litigation of prenuptial agreements in New York. Lastly, it explores how the court might address concerns regarding power and autonomy during the drafting and enforcement processes of prenuptial agreements, which in turn may enhance the role that 'prenups' can play in the judicial allocation of spousal property on the breakdown of marriage. This text provides an alternative perspective on an issue fraught with difficulty - the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spouses and civil partners to make autonomous decisions about the division of their property on divorce. Yet the book will demonstrate that, in the attempt to promote autonomy, other issues such as imbalance of power between the parties become obscured. The book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, this book attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements This book analyses the enforcement of prenuptial agreements using a feminist and contractual theoretical framework. It offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved.