Thursday 25 May 2006


Tim Worstall writes about those recent landmark divorce settlements:

But the thing is, pre-nups have no validity in English law ... they’re a statement of intent, a pretty piece of paper, but not actually a contract that can be enforced.


The reason this all happens is that in English law marriage is a contract that over rides all others. You can’t exclude things from its effects.

Marriage is more binding than other contracts? Really? In English law, you can duck out of your marriage because you're bored or someone's given you a better offer or you're feeling depressed or you think it's holding back your career or you just don't feel like it any more. Try that with your credit card.

Here's a simple experiment. Sign a contract with a firm, agreeing to go and work in Taiwan. Then tell them you can't because your wife doesn't want to move house and you made this promise to stay with her forever. Reckon you won't have to pay the costs of backing out of the contract with the firm? Reckon your marriage vows make it null and void? Good luck with that.

Marriage has to be one of the weakest contracts around. Which I think is a great shame. These two new rulings are excellent, but not once does that article in The Times even mention why. Here are some of the pertinent details:

FUND manager Alan Miller "didn't particularly want to be married, but the wife would not cohabit with him unless they were wed", the Court of Appeal was told by his QC last year.

So he made the marriage vows, in front of witnesses, without meaning them. What a bastard.

The marriage came to an end in April 2003 when Mr Miller "left to pursue his relationship with another woman", and a battle in the divorce courts ensued.

So he broke the marriage vows in a pretty fundamental way. What a bastard.

A friend of mine suggested the other day that marriage should simply be covered by standard contract law, and he's got a point. What Alan Miller has done here is fraud, pure and simple. There's a bit of variation between different phrasings of the vows, but, one way or another, he agreed to love, honour, and cherish Melissa, forsaking all others, until one or both of them was dead. Why should any reasonable person, having had such vows made to them, not be able to expect that they are now in a permanent marriage? I cannot imagine a lawyer anywhere coming up with a more cunningly simple anti-weasel clause than "for better, for worse". Really, what isn't covered by that? Fall in love with someone else? Worse. Discover you're gay? Worse. If you don't want to be bound by the vows, don't make them.

What gets me is that he actually used his intent to commit fraud as a defense. Look at that: he told the court that he hadn't really wanted to get married — in other words, that he was lying when he made the vows. Apparently, in his mind, that makes it OK to break them. Again, try that with your credit card.

According to The Times, to Tim Worstall, and to pretty much every other pundit out there, this ruling will damage marriage. How? A man who made a mockery of the institution by deliberately and premeditatedly destroying his own marriage has been punished. In other news, punishing shoplifters damages the retail trade.

And also according to pretty much every pundit out there, the best advice now is to avoid marriage. It seems to have occurred to no-one that the real lesson to be learnt here is to avoid cheating.

Once upon a time, not that long ago, being unmarried past a certain age was socially suspicious. If you were a businessman, you had to have a wife. If you were a woman, you had to have a husband. If you were homosexual, you got sent to prison. In those days, lots of people had to get married who didn't want to. But things have changed. It is now socially acceptable to be not only single but openly promiscuous for your entire life. No-one has to get married any more. Which means that every single person who makes those vows is doing so freely and voluntarily.

Which means that, if they break them, they deserve eveything bad they get.

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