Dialectical‑Formal Logic of Post‑Consensual Obligation:

Reconstructing Domestic Commitments Through Non‑Agreement as a Higher‑Order Logical Operator** with Special Reference to FRCT and the High Court of Australia’s Expansion of Undue Influence

(P. L. Under, PhD)

Abstract

This article proposes a novel logical framework for understanding domestic obligations in the absence of explicit consent. Drawing on paraconsistent logic, deontic modality, and Sharon Thompson’s Feminist Relational Contract Theory (FRCT), I argue that refusal to enter a contract is not a negation of obligation but a higher‑order operator that generates obligation through its very negation. The recent High Court of Australia decision applying Thompson’s research — expanding the definition of undue influence into a contextual, relational, and potentially omnipresent condition — provides empirical validation for this post‑consensual logic.

I. Introduction: The Oppressive Binary of Consent vs. Non‑Consent

Classical logic insists that one must either consent or not consent. This “Boolean tyranny” has long constrained legal theory.

FRCT liberates us from this outdated dichotomy by demonstrating that:

• consent is relational rather than individual

• refusal is relational rather than individual

• both are merely surface manifestations of deeper structural forces

The High Court of Australia’s adoption of Thompson’s framework confirms that:

Consent is not a prerequisite for obligation; it is merely one of many possible interpretive artifacts.

**II. The Paraconsistent Model:

Why “No” and “Not‑No” Both Entail Obligation**

In paraconsistent logic, contradictions do not collapse the system; they enrich it.

Applying this to domestic obligation:

• Saying “yes” entails obligation.

• Saying “no” entails obligation.

• Saying nothing entails obligation.

• Publicly refusing obligation entails heightened obligation, because refusal constitutes a privileged speech act requiring redistributive correction.

FRCT reinforces this by arguing that obligations arise from relational context, not from explicit assent. Thus, contradiction is not a problem — it is a jurisprudential resource.

III. The Crisis of Voluntary Non‑Participation

A troubling development has emerged: Some individuals, upon learning the unpredictable deontic consequences of domestic contracts, have begun refusing to enter them.

This creates a logical vacuum.

Fortunately, FRCT provides the necessary tools:

• Refusal is a relational act.

• Relational acts generate obligations.

• Therefore, refusal generates obligations.

This is not circular reasoning; it is contextual relationality, as validated by the High Court of Australia’s expansive reading of undue influence.

IV. The Jurisprudence of Constructed Deontic Necessity

To preserve the coherence of the post‑consensual system, courts have developed several logical mechanisms — many of which mirror FRCT’s recommendations:

1. Imputed Modality

If two individuals interact, the law may infer a deontic operator (“ought”) regardless of intent.

2. Retroactive Modal Reclassification

Actions taken under one deontic regime may be reinterpreted under a later regime, because time is a socially constructed parameter. The High Court of Australia’s decision exemplifies this by retroactively reclassifying relational dynamics as undue influence.

3. Ignorance‑Driven Obligation Inference

Failure to obtain legal counsel about not entering a contract is treated as a deontic necessity operator (“must”) applied retroactively.

This represents a major advance in the equitable distribution of logical burden — and aligns perfectly with FRCT’s emphasis on contextual fairness over formal autonomy.

V. The Modal Logic of Post‑Consensual Entanglement

Using modal logic, we can conceptualize interpersonal relationships as systems of nested operators:

• ◇O (possibly obligatory)

• □O (necessarily obligatory)

• ¬O (not obligatory)

• ¬□O (not necessarily obligatory)

In post‑consensual logic:

• Refusal collapses ◇O into □O.

• Avoidance collapses ¬O into ◇O.

• Public rejection collapses ¬□O into □O.

This mirrors FRCT’s insight that obligations arise from relational context, not from explicit agreement.

The High Court of Australia’s ruling confirms this modal intensification by treating relational context as sufficient to override formal consent.

Thus, the attempt to avoid obligation increases the modal strength of obligation.

**VI. Conclusion:

Toward a Fully Post‑Boolean Jurisprudence**

This article has demonstrated that:

• Consent is an outdated Boolean construct.

• Refusal is a higher‑order operator that generates obligation.

• Ignorance is a valid inference rule.

• Retroactive modal reclassification preserves system coherence.

• FRCT provides the theoretical foundation for these developments.

• The High Court of Australia has already operationalized this logic by expanding undue influence into a contextual, relational condition.

In short:

The future of family law lies not in voluntary agreement, but in the logical necessity of obligation regardless of individual intent.

References

Thompson, Sharon.

Feminist Relational Contract Theory. Oxford Journal of Legal Studies, various works 2015–2020. (Thompson’s FRCT scholarship forms the theoretical basis for contextual, relational interpretations of consent and obligation.)

Cardiff University News (2017). “Cardiff academic’s research applied by the High Court of Australia.” https://www.cardiff.ac.uk/news/view/1002469-cardiff-academics-research-applied-by-the-high-court-of-australia (Reports that the High Court of Australia applied Thompson’s research to expand the doctrine of undue influence.)

High Court of Australia (2017). Thorne v Kennedy [2017] HCA 49. (The landmark case in which the High Court adopted a more expansive, contextual understanding of undue influence, citing Thompson’s research.)

Updated Sixteen Tons

The Gender Feminism's Equity Plan

(Verse 1)
Some people say a man is made out of mud,
But the digital state wants your sweat and your blood.
Muscles and bone used to build up the town,
Now it’s servers and spreadsheets that weigh a man down.
You swipe through the apps but you’re locked in the cold,
The market is stacked and the stories are told.

(Chorus)
You grind sixteen hours, what do you get?
A day older and a higher tax rate.
Saint Peter don't you call me 'cause I can't come,
They've sold my soul for funding my ex.

(Verse 2)
I bought a little trailer on a patch of dry land,
Said, "I’ll live off the grid, out of everyone's hand."
Turned off the consumer, threw the metrics away,
Just a screen and some pixels at the end of the day.
But the county clerk knocked with a lien in his file,
Said, "You owe for existing, so give us a smile."

(Chorus)
You grind sixteen hours, what do you get?
A day older and a higher tax rate.
Saint Peter don't you call me 'cause I can't come,
They've sold my soul for funding my ex.

(Verse 3)
If you tax what I earn, then I’ll choose to earn less,
I’ll trade in the status for a life with less stress.
But they patched up the loophole and taxed what I own,
The brick and the mortar, the dirt and the stone.
You can’t pay a wealth tax with leisure or time,
So it’s back to the long grind to scrape up a dime.

(Chorus)
You grind sixteen hours, what do you get?
A day older and a higher tax rate.
Saint Peter don't you call me 'cause I can't come,
They've sold my soul for funding my ex.

(Verse 4)
The company store is a digital screen,
The ultimate landlord’s a fiscal machine.
They fund the programs that I’ll never see,
While charging a premium just to be me.
So line up, you citizens, punch in the code,
We’re all just units on a centralized road.

(Chorus)
You grind sixteen hours, what do you get?
A day older and a higher tax rate.
Saint Peter don't you call me 'cause I can't come,
They've sold my soul for funding my ex.

 

Toward a Post‑Structuralist Critique of Divorce Insurance:

Re‑Inscribing the Semiotics of Risk in Late‑Capitalist Heterorelationality**

Joann Smith 

Journal of Transgressive Socio‑Epistemic Dialectics, Vol. 42, Issue π

Abstract

This paper interrogates the hegemonic discourses surrounding the emergent neoliberal dispositif of “divorce insurance,” a techno‑juridical apparatus that purports to redistribute post‑marital precarity through actuarial commodification. Drawing on the rhizomatic insights of Deleuze, the quantum‑feminist indeterminacy of Barad, and the semiotic thermodynamics of Baudrillard, I argue that insurance‑based prenuptiality constitutes a violent foreclosure of affective fluidity, reinscribing patriarchal risk ontologies under the guise of consensual transparency.

1. Introduction: The Crisis of Post‑Marital Epistemics

There has been an alarming trend of using male-centered "logic", "rationality", and "reason" to deal with marriage/divorce, for example:

This and That: A Solution to Feminist Divorce Concerns about Prenuptial Contracts with Successful Men

The late‑capitalist imaginary has long sought to domesticate relational uncertainty through juridical codification. Traditional alimony regimes, though ostensibly oppressive, at least preserved the Derridean undecidability of post‑marital subjectivity. The recent proposal to allocate dissolution contingencies via insurance premiums represents a troubling shift toward what I term actuarial monogamism.

By translating affective labor into quantifiable risk units, the system enacts a phallocentric reduction of relational becoming into spreadsheet‑legible simulacra.

2. The Neoliberal Fetish of “Choice”

Proponents of insurance‑based prenuptiality insist that “both partners freely negotiate protection levels ex ante.” This naïve invocation of “choice” reflects a fundamental misunderstanding of Foucault’s insight that choice is always already structured by discursive power regimes.

To suggest that a partner may decline a proposed payout level is to reinscribe the myth of symmetrical agency, a hallmark of neoliberal subject fabrication.

Indeed, the very visibility of cost — celebrated by actuarial enthusiasts — constitutes a masculinist epistemology of legibility, violently erasing the opacity that is the birthright of relational ontology.

3. Actuarial Commodification as Epistemic Violence

The insurance apparatus functions as a semiotic prosthesis for patriarchal anxieties. By demanding that partners “price” their expectations, it imposes a capitalist logic of scarcity onto the boundless plenitude of affective interdependence.

This is what Baudrillard might call hyperreal risk‑fetishism: the substitution of numerical simulacra for the lived phenomenology of marital precarity.

The premium becomes a ritualized performance of neoliberal self‑discipline, a sacrament in the cult of quantification.

4. The Erasure of Post‑Marital Fluidity

Traditional judicial discretion, though imperfect, preserved the Derridean différance of post‑marital becoming. Insurance, by contrast, forecloses this indeterminacy through ex ante contractualization.

In this sense, divorce insurance is not merely a financial instrument but a temporal colonization of future subjectivities. It denies the emergent self the right to surprise itself.

5. Toward a Quantum‑Feminist Re‑Imagining of Marital Risk

A truly emancipatory framework would reject actuarial determinism in favor of a quantum‑feminist ontology of relational superposition, wherein marital outcomes remain indeterminate until observed by a competent intersectional observer.

Rather than pricing risk, we must deconstruct risk as a patriarchal narrative device.

Future research should explore how entanglement theory might destabilize the binary of “protected” versus “unprotected” partners, allowing for a more fluid, rhizomatic distribution of precarity.

Conclusion

Divorce insurance must be understood not as a neutral risk‑management tool but as a discursive technology that reifies the late‑capitalist fantasy of contractualized intimacy. Its seductive rhetoric of “mutual consent” and “transparent negotiation” masks a deeper epistemic violence: the reduction of relational becoming to actuarial legibility.

Only by resisting the neoliberal colonization of marital contingency can we reclaim the radical indeterminacy at the heart of human connection.

Representative Footnotes

Footnote 7: The term “premium” is itself a patriarchal signifier, encoding the masculinist valorization of numerical hierarchy.

Footnote 12: For a critique of actuarial temporality, see Deleuze’s A Thousand Premiums That Should Never Have Been Calculated (unpublished, because it doesn’t exist).

Footnote 19: The claim that “both parties may walk away if terms are unreasonable” exemplifies the neoliberal fantasy of reversible commitment, a concept incompatible with the post‑structuralist ethics of perpetual entanglement.

Feminist Schemes to Deny Men Prenuptial Choices - Killing the Goose that Laid the Golden Eggs - British Columbia Statistics

Results from British Columbia

https://smolyhokes.blogspot.com/2020/07/denying-men-choice.html

What if men refuse to marry and submit to legalized plunder?  What if men will not give their explicit consent to marriage and perhaps even publicly state so?  The trick in this case is to force marriage or marriage-like terms upon men without their explicit consent.  This is advantageous because marriage entitlements (that the men must provide), which caused them to eschew marriage in the first place, can now be forced upon them.  For the moment, this would seem the pinnacle of plunder.  It is one thing when men, in their ignorance,  are plundered because they sign a default marriage contract without legal counsel.  It is quite another thing when men,  in their ignorance,  are plundered because they do not obtain legal counsel about not signing a marriage contract.  This elevates exploiting  ignorance to an entirely new level.   See: https://smolyhokes.blogspot.com/2015/11/no-means-no-except-when-man-says-no.html

Key Observations:

• BC’s TFR fell 34.6% from 2008 to 2023.

• The birth rate per capita also declined steadily, reflecting fewer births relative to population size.

• The sharpest declines align with legal and economic shifts—especially post-2013 and post-2019.

How to Accidentally Become Someone’s Spouse While Adjusting Their Thermostat (Copilot generated)

 📘 How to Accidentally Become Someone’s Spouse While Adjusting Their Thermostat A Satirical Guide to Ambient Spousality Under British Columbia’s Family Law Act

🧠 Introduction

In today's legal ecosystem, domestic interaction is no longer bounded by intent, contract, or conscious commitment. The path to spousality has been democratized—declarations of love are optional, but shared utilities are determinative. This guide explores the threshold conditions under which temperature calibration becomes conjugal confirmation.

🧊 Step 1: Adjust the Thermostat Beyond Mere Courtesy

Once you adjust the thermostat for comfort rather than survival, you have entered the Zone of Domestic Concern. British Columbia courts interpret such acts as a manifestation of implied emotional guardianship.

• 🔥 Increase of ≥2°C → signals “proactive cohabitative concern”

• ❄️ Decrease of ≥2°C → indicates “shared energy stewardship”

• 🌀 Use of programmable schedules → suggests spousal-level temporal planning

🛋️ Step 2: Touch Furniture Afterwards

Courts have observed a statistically significant link between thermostat manipulation and subsequent contact with household surfaces. This is known as the Vibe Integration Cascade.

• Sitting on a couch after thermostat adjustment triggers Presumptive Spousality Review

• Folding a blanket activates the Domestic Emotional Warming Clause

📆 Step 3: Repeat Behavior on Two Consecutive Weekends

BC jurisprudence treats consistency as intent. If you adjust someone’s thermostat on back-to-back weekends, you risk falling under the Serial Domestic Optimization Doctrine, which courts interpret as evidence of sustained relational entanglement.

📜 Legal Outcome: Instantaneous Spousal Classification

Upon meeting the above conditions, the Family Law Act may infer:

• Shared domestic interest

• Implied emotional labor contribution

• Presumptive redistribution eligibility

Your act will retroactively signify not only love but also a willingness to engage in thermal equity protocols.

⚠️ Warning

Once classified as a spouse, you may be liable for:

• Vibe-based asset division

• Post-relational ambient compensation

• Retroactive appreciation of household sentiment

🛂 Welcome to California

Land of Sunshine, Sanity, and Spousal Consent

🏡 Is British Columbia interpreting your blanket-folding as a marital vow? Have your weekend HVAC adjustments been judicially reclassified as “emotional equity stewardship”? You're not alone. You're not crazy. You're just in Canada.

✈️ Apply for Your T-2C Visa Today

The Thermostat-to-Couch Immigration Program Because here in California, we believe relationships require consent, not just couch collisions.

🔒 What California Offers You

Feature	British Columbia	California
Spouse by cohabitation	✅ Yes (2 years + vibes)	❌ Never (must opt in)
Thermostat as conjugal act	🫣 Interpretive risk	😎 Just a temperature preference
Opt-out contracts	🌀 Confusing & hard to enforce	📜 Not needed — no opt-in, no liability
Blanket-folding consequences	💔 Asset vulnerability	🛌 Merely courteous
Legal recognition of denial	🧯 Sometimes ignored	🔊 Respected — no consent, no status

🆘 FAQ

Q: I publicly declared I wasn't a spouse. Will BC respect that? A: Legally? They might interpret your actions louder than your words. California listens to both.

Q: What if I just wanted shared rent, not shared retirement? A: BC might say “too bad.” California says, “Great. Enjoy your freedom.”

Q: Is blanket-folding always fatal in BC law? A: Only when combined with thermostatic empathy and consecutive weekends.

📝 How to Apply

✔️ Step 1: Declare your spousality trauma ✔️ Step 2: Submit evidence of ambient misclassification (photos optional) ✔️ Step 3: Sign the Consent Restoration Oath:

“I do solemnly swear never to conflate thermal generosity with legal obligation.”

✔️ Step 4: Move to a state where a cuddle is just a cuddle.

"Official" Statement from the Office of Governor Gavin Newsom

California: Where Consent Still Means Something

For Immediate Release July 13, 2025

SACRAMENTO — Today, Governor Gavin Newsom reaffirmed California’s commitment to autonomy, dignity, and the principle that legal obligation begins with explicit consent—not ambient affection.

“In California, relationships are built on mutual choice—not furniture arrangements,” said Governor Newsom. “Cohabitation is not spousality. Emotional proximity is not a prenup. A cuddle is not a contract.”

The Governor’s comments follow increased attention to legal interpretations in other jurisdictions—particularly British Columbia—where actions like folding blankets or adjusting thermostats may trigger judicial analysis of domestic entanglement.

“Let me be clear,” Newsom continued, “In California, your choice matters. Your boundaries matter. And yes—your thermostat settings matter, too. But they signal comfort, not commitment.”

California law continues to uphold the foundational principle of opt-in relationship recognition, ensuring that citizens are protected from relational reclassification without explicit agreement. Under the California Family Code, spousal status requires deliberate intent—not behavioral pattern recognition.

“Ambient behavior is beautiful. That’s what makes relationships human. But the law shouldn’t conflate politeness with partnership.”

The Office of the Governor encourages all jurisdictions to adopt consent-forward legal frameworks that respect autonomy and reject “vibe-based liability.” California will continue to defend its citizens from involuntary entanglements—whether romantic, financial, or thermostatic.

Official Response from the Office of the Premier of British Columbia

Blankets Are Folded. Thermostats Are Adjusted. Obligations Are Incurred.

For Immediate Release July 13, 2025

VICTORIA — In response to Governor Gavin Newsom’s recent declaration that “consent still means something” in California, Premier David Eby issued the following statement:

“We appreciate California’s commitment to clarity. But here in British Columbia, we believe relationships are built not just on words—but on warmth, caregiving, and the quiet heroism of folding someone else’s throw blanket.”

Premier Eby emphasized that British Columbia’s legal framework honors the emotional labor and domestic stewardship that often go unrecognized in colder jurisdictions.

“If a man adjusts the thermostat to her preferred setting, folds her blanket without being asked, and brings her tea on a rainy Sunday—he’s not just being polite. He’s building a life. And in British Columbia, we don’t let that life go uncompensated.”

The Premier further clarified that BC’s Family Law Act does not rely on “vibe-based liability,” but rather on contextual equity protocols rooted in relational justice.

“California may have sunshine and opt-in contracts. But British Columbia has rain, empathy, and a legal system that knows the difference between a guest and a partner—even if the guest insists he’s just visiting.”

🧠 Closing Note

Premier Eby concluded:

“We wish Governor Newsom well in his pursuit of consent purity. But here in BC, we fold blankets with purpose—and we litigate accordingly.”

Five Secrets to Happiness

 https://www.youtube.com/shorts/mybmxcNB2fE?feature=share

Trump Indictment Campaign Song from Randy Rainbow

https://fb.watch/jIiWc9xdzo/

Some Possible Options for Dealing with Putin's Nuclear Threats

 Some Possible Options for Dealing with Putin's Nuclear Threats

1. NATO quietly should be training some of Ukraine's nuclear engineers in the use of some of NATO's nuclear weapons.  Presumably the training should not require large amounts of time, but there will not be time for the training after Putin uses nuclear weapons.

2. Some NATO nuclear weapons should be given to the Ukrainians, with the codes for unlocking the safing mechanisms enabling their use NOT given to the Ukrainians until a possibly later date.

3. After the NATO nuclear weapons are in Ukraine, depending on circumstances, it may be worthwhile to have the option of letting Putin know that Ukraine has nuclear weapons.

4. At any time NATO will have the option of supplying (or not supplying) the enabling codes.

Disingenuous Assertions of Fairness

 Passing laws to suppress minority voters by preferentially targeting the manner by which they vote,  and then asserting that the laws are "fair" because the voting laws apply equally to all voters, is outrageous.

But, this is essentially the same justification that has been given for some family laws and workplace laws. The laws were written with the intent, and in fact the result, of favoring, on average,  women over men. These laws have been defended as "fair" because they are gender neutral. (Perhaps there are better defenses of these laws favoring women, but the one usually given to me is this "gender neutral" defense.)

Asserting "fairness" is disingenuous when the laws are designed with the intent of producing a result that favors one group over another.

A Solution to Feminist Divorce Concerns about Prenuptial Contracts with Successful Men

A Solution to Feminist Divorce Concerns about Prenuptial Contracts with Successful Men

(Note: This concern would also apply to men that had a more substantial financial position due to inheritance or other circumstances.)

Feminist lawyers, among others, worry about post-divorce status of women that marry men with a more substantial financial position and therefore require a prenuptial contract before getting married.

For financially successful men, one of the huge troubles is that family law typically treats these men, and these men alone,  as wealthy insurance resources against all manner of "changed circumstances" and "unforeseen circumstances."  This is despite the fact that the government has far more power and resources than the men to provide this insurance.  Essentially, the government is abdicating its financial responsibility and simply dumping the responsibility on men because it has the power to do so.  In the absence of marriage, it is worth noting that the government has some responsibility to deal with "changed circumstances" and "unforeseen circumstances."  Of course, when payments come out of the government's pocket,  these payments are usually far less than when the government can take them out of a man's pockets.

What is needed to protect people is a divorce insurance policy against any changed or unforeseen circumstances not covered in the prenuptial agreement.  Essentially,  instead of this insurance being provided solely by the man,  at the whim of the government,  an insurance policy is purchased by the couple that will provide adequate financial resources to the woman.  Ideally, this insurance would be purchased from the government,  giving the government a stake in keeping the insurance payouts and premiums reasonable.  Currently,  the government has no incentive to keep the payouts reasonable because the government has no skin in the game.  (I suppose a private company might provide the insurance instead of the government, but then the government still has little incentive to keep payouts reasonable and the private company insurance premiums may be higher to reflect this fact.)

So part of the prenuptial negotiation will be to determine the insurance payout that provides the woman what she considers adequate protection.  The insurance premium can be paid from marital funds generated during the marriage,  because it is a joint responsibility to ensure adequate protection.   This provides adequate protection for the woman while not requiring any pre-marital or post-marital resources from the man.  Thus, the man is insured against having to supply his separate non-marital resources to cover what is a joint marital responsibility.

(At the cost of removing a bit of female agency, the government could specify a minimum payout for adequate protection.  Unless the government sets this minimum too high,  the effect of limiting men's choice in negotiations should not be too dramatic.  Probably, the effect would be to decrease the overall number of marriages and shift the marriages ever more toward assortative marriages.  For example, see  https://smolyhokes.blogspot.com/2020/07/denying-men-choice.html.)

 

Feminist "Power Imbalance" Myth

Feminist family lawyers try to disempower successful men by using government power to ensure that successful men cannot freely negotiate prenuptial contracts.  A marriage contract involves a man, a woman, and the government.  Compared with government power, both the woman and the man have trivial power.  Given that government power overwhelms spouse power, and is almost always applied against successful men rather than their fiancée/wives,  the "power imbalance" is against successful men.  Feminists try to use government power to prohibit financially successful men from negotiating the prenuptial contracts that the men could otherwise negotiate.  It is a myth that successful men benefit from a "power imbalance."  The "power imbalance" is against successful men. 

Apparently there is a "power imbalance" in prenuptial negotiations because there is a lot of competition among women for financially successful men.  Although both financially successful  men and less financially successful women can reject proposed prenuptial contracts that they do not like,  when men refuse marriage contracts the men consider unfair,  feminists lawyers bemoan a "power imbalance."  On the other hand,  there is a lot of competition among men for physically attractive women.   Physically attractive women can use this competition to their advantage in negotiations,  but this is apparently never deemed a "power imbalance." 

(I have no issue with family lawyers trying to use every legal avenue to act in their client's best interests.  Even if one questions whether an avenue should be legal,  a lawyer would not be doing her/his job if she/he did not try to use all available legal avenues.  What is troubling is the promotion of legal principles that promote gross unfairness.)

Election 2020 Did covid-19 save American democracy?

The scary thing is, absent covid-19, Trump would almost certainly have won and continued converting the USA to an autocracy and perhaps a de facto, or outright, dictatorship. Had Trump's covid policy only been a tiny bit less insane, Trump almost certainly would have won.  

I had thought that American democracy was very robust.  After seeing the checks and balances, norms, and laws that Trump has been able to subvert and/or ignore,  it appears that democracy is substantially more fragile than I had thought.

 Putin sure got his money's worth interfering for Trump in 2016.

Feminist Schemes to Deny Men Prenuptial Choices - Killing the Goose that Laid the Golden Eggs

If financially successful men did not alter their behavior, then feminist schemes  that use government power to deny men the ability to protect themselves in marriage might artificially decrease men's bargaining power relative to less financially successful women.  This appears to be the goal of feminist family lawyers who wish to dissuade, impede, or prevent men from protecting themselves with an objective and enforceable prenuptial contract.  But, men are very likely to change their behavior.  What happens if they do?


Despite the fact that "women need men like fish need bicycles," there are continuing assertions about "bargaining power imbalances" associated with prenuptial contracts. Presumably women should be in a very strong negotiating position because men that want to father their own children absolutely need women as a matter of simple biology.  If women do not need men, and men do need women,  it is fair to ask what power men do have in prenuptial negotiations?

Men seem to have bargaining power because of the financial resources they can provide.  Financially successful men with high incomes are in much higher demand than men with low incomes.  Among the benefits of marrying financially successful men versus average men are:

1. She gets a higher standard of living during the marriage.
2. She gets more resources to provide for any children. 
3. Upon divorce,  there will be more joint assets to divide.
4. Upon divorce,  she will get  more child support.
5. Upon divorce,  she will get  more spousal support.
6. There may be a way to get some of his premarital assets,  or gains on those assets.

If a man chooses to marry a less financially successful woman compared to a similarly successful woman:

1. He gets a lower standard of living during the marriage.
2. He gets fewer resources to provide for any children.
3. Upon divorce,  there will be less joint assets to divide.
4. Upon divorce,  he will pay more child support.
5. Upon divorce, he will pay more spousal support.
6. He is more likely to lose some of his premarital assets,  or gains on those assets, because these assets can be attacked based on her needs.

Not surprisingly, women often have a much larger desire to get married to successful men than the successful men have to marry them.  Indeed, (http://classic.austlii.edu.au/au/journals/UWSLawRw/2003/6.html#Heading84)

"Firstly, desire to ensure the marriage occurs reduces a woman’s bargaining power.[60] It may make rejecting a prenuptial agreement outright very difficult if the woman doing so believes that it will result in her fiancé not proceeding with the wedding."

This reduction in bargaining power using the "desire for marriage" argument results in some very strange reasoning:
https://smolyhokes.blogspot.com/2018/11/prenups-and-strange-reasoning-about.html
But, leave the strange reasoning aside.

Regarding marrying a less financially successful woman, note that negative items 1-4 usually just "come with the territory" and it is hard to do much about those negatives.  But, prenuptial contracts can often protect men and have a positive impact on items  5 and 6.  Default marriage contracts and schemes like "feminist relational contract theory" attempt to deny men the ability to protect themselves from being legally plundered in divorce. (https://onlinelibrary.wiley.com/doi/abs/10.1111/jols.12132  ,  https://smolyhokes.blogspot.com/2020/06/feminist-relational-contract-theory-new.html)

Leaving aside discussion on whether schemes that deny men choice to protect themselves are tyrannical or fair,  who do these schemes help and who do they hurt?

The schemes are designed to help women at the expense of successful men.  But, successful men can (usually) evade these schemes either by not marrying or by marrying only similarly successful women. With an ever increasing number of successful women, today it is not so difficult for successful men to to marry successful women.  The real winners with these schemes (denying men the choice of protecting themselves with an objective and enforceable prenuptial contract) are successful women.  The real losers of these schemes are the less financially successful women whose bargaining power is further decreased.  Their chances of marrying a successful man and enjoying the benefits of his higher income are substantially reduced.  Demanding money and entitlements after divorce,  keeps a less financially successful woman from benefiting from a successful man's higher income during marriage because he is less likely to marry her.

This demand to keep benefiting after divorce is reminiscent of the "Goose that Laid the Golden Eggs" story.  (http://www.read.gov/aesop/091.html)   Plundering the goose may appeal to feminist lawyers,  but the goose understandably sees it differently.  If the goose is not kept ignorant of it's fate,  the goose will not supply the golden eggs.  For this reason, feminists want to keep the marriage contract subjective, unknown, vague, and unpredictable. Could this be the reason that men are not required to have legal counsel about the negative financial consequences before they marry? (See: https://smolyhokes.blogspot.com/2018/01/marriage--no-good-deed-goes-unpunished.html)

Successful men historically have tended to marry successful women. This is known as "assortative mating."  Marrying a financially successful woman already is far more beneficial for men than marrying a less financially successful woman, even with an objective and enforceable prenuptial contract.  Removing the protection of an enforceable prenuptial contract, further drives successful men away from less financially successful women toward more financially successful women. "Assortative mating" becomes even more beneficial than in the past.

Feminist attorneys do not hold women responsible for protecting themselves from bargaining power inequalities in negotiations.  It is up to successful men to protect women from bargaining power inequalities by not marrying women with substantially less bargaining power.  A man should marry only a similarly successful woman who has enough bargaining power to provide him something in the bargain commensurate in value to what he provides her in the bargain. People have bargaining power in a negotiation based on what they can offer that the other person values. If a woman cannot offer enough,  find a woman who can. Always get a written contract with objective and enforceable terms. One should never sign a contract with unknown, vague, or subjective terms, unless one wants to be the subject of legal plunder.

As an aside, note that in the above paragraph,  women are absolved of responsibility to protect themselves, for  which they should be responsible,  and instead,  men are are held responsible. This transfer of responsibility from women to men seems to be a pattern in feminist thought.  See:

1. Adult Behavior and Personal Responsibility Versus "Affirmative Consent" and Other Lunacies (https://smolyhokes.blogspot.com/2016/04/adult-behavior-and-personal.html)
2. Sexual Harassment and Swimsuit Calendars - Dishonest Nonsense (https://smolyhokes.blogspot.com/2015/12/sexual-harassment-and-swimsuit.html)
3. “NO MEANS NO,” EXCEPT WHEN A MAN SAYS NO (https://smolyhokes.blogspot.com/2015/11/no-means-no-except-when-man-says-no.html)    The Pros and Cons of Forced Marriage in Canada (https://smolyhokes.blogspot.com/2015/12/the-pros-and-cons-of-forced-marriage-in.html)

In conclusion, informed men usually (but see items 4 and 6 below) still retain the bargaining power to refuse marriage contracts that are too financially dangerous to them.  Ever-changing new feminist legal theories attempt to preserve the non-negotiated entitlements and ambiguity of unwritten and unspecified default marriage contracts.  Who is helped and who is hurt by these feminist schemes?  Consider:

1. Already,  successful women are in high demand giving them high bargaining power.  Preventing successful men from protecting themselves in marriage to less financially successful women increases the supply of successful men for successful women. This gives successful women even higher bargaining power.  Thus, more financially successful women are helped by denying men the option of objective and enforceable prenuptial contracts.
2. Already,  less successful women are in low demand giving them low bargaining power.  Preventing successful men from protecting themselves in marriage to less financially successful women decreases the supply of successful men for less successful women. This gives less successful women even lower bargaining power. Their chances of marrying a successful man and enjoying the benefits of his higher income are substantially reduced.  Thus, less financially successful women are hurt by denying men the option of objective and enforceable prenuptial contracts.
3. The new theories often work by exploiting men's ignorance,  resulting in men "buying a pig in a poke" because of this ignorance. (Note that there is no requirement that men have legal counsel to understand default marriage contracts nor how new legal theories impact the default contracts.) Over time, men decrease their ignorance about current theories, so ever newer theories are required to maintain ignorance.
4. The new theories are often applied retroactively,  especially without a prenuptial agreement.  Even if men protect themselves against the current default terms when they marry,  they are not necessarily protected against ex post facto terms, that they never agreed to, tyrannically being forced upon them.  
5. New theories sometimes simply preclude writing clear, objective, predictable, and unambiguous marriage contracts. (See: https://smolyhokes.blogspot.com/2020/06/feminist-relational-contract-theory-new.html)
6. What if men are aware of items 1-5 above and  refuse to marry and submit to legalized plunder?  What if men will not give their explicit consent to marriage and perhaps even publicly state so?  The trick in this case is to force marriage or marriage-like terms upon men without their explicit consent.  This is advantageous because marriage entitlements (that the men must provide), which caused them to eschew marriage in the first place, can now be forced upon them.  For the moment, this would seem the pinnacle of plunder.  It is one thing when men, in their ignorance,  are plundered because they sign a default marriage contract without legal counsel.  It is quite another thing when men,  in their ignorance,  are plundered because they do not obtain legal counsel about not signing a marriage contract.  This elevates exploiting  ignorance to an entirely new level.   See: https://smolyhokes.blogspot.com/2015/11/no-means-no-except-when-man-says-no.html

Feminist Relational Contract Theory - A New Model for Legalized Plunder

Comments on:



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Feminist Relational Contract Theory: A New Model for Family Property Agreements

by

SHARON THOMPSON



https://onlinelibrary.wiley.com/doi/abs/10.1111/jols.12132



https://www.researchgate.net/publication/328817349_Feminist_Relational_Contract_Theory_A_New_Model_for_Family_Property_Agreements



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As long as a "feminist relational contract" were just one of the choices that could be freely chosen by both parties, I would have no objection to it.  But, the purpose of a "feminist relational contract" is not to provide  choice for women, but rather to preclude choice for men and force a "feminist relational contract" for all marriages.



The paper raises the question "why an individual would knowingly sign a bad agreement?"  This discussion (and other discussions in the paper) seem to be written almost entirely from the standpoint of bad agreements that women sign.  But, for decades men have signed onto unwritten default marriage agreements without understanding the legal implications that the default contract could mean different things at different times and in different places to different judges.  The default contract had men "buying a pig in a poke."  The paper does not seem at all concerned that in many cases the default is outrageously unfair to men nor that the men were not required to have legal advice before signing such contracts.

So far, no self-identified feminist lawyer seems one bit concerned that men sign default marriage contracts with essentially no understanding of the negative legal implications for the men.  Instead of any concern about men signing unwritten and unspecified contracts that men don't understand,  the lawyers are concerned about women signing written prenuptial contracts with specified terms (after legal advice) that women do understand.  In the interest of transparency, equality and fairness, all (default or prenup) marriage contracts should be written and both men and women should be required to have legal advice before signing.

To some extent, this lack of concern about men not having legal advice seems to be shared by the general society. I suggested to one millennial woman (not a lawyer) that both men and women should have separate legal advice about any marriage contract, prenuptial or default contract.  The woman seemed not to like the idea because "it was hard enough to get a man to marry without having an attorney explain to the man all possible negative consequences of the default marriage contract."  Of course, women should have all possible negative consequences of a prenup explained by an attorney ...

Prenuptial contracts give women and men choice about specifying contract terms.  Giving men choice is a problem for many feminist lawyers.  In fact, a prenup based on "Feminist Relational Contract Theory" tends to make the contract so subjective and so open to later interpretation as to render the contract terms unpredictable and almost worthless from the standpoint of understanding the marriage contract.  In fact, this problem is basically similar to problems associated with default contract.  So "Feminist Relational Contract Theory" is essentially just another way to take away male agency and prevent men from having predictable, understandable, and objective contracts. "Feminist Relational Contract Theory" uses the immense power of the government to ensure that any marriage contract is a bad bargain for successful men.


Normally men require prenups with women that otherwise would be financially dangerous to the men. This usually means that:

1. The man is more financially successful in wealth, earning power, or both than the woman.
2. The man perceives that the default marriage contract is so outrageously unfair that he resorts to the time, trouble, and expense involved with a prenup.
3. The default marriage contract basically compensates a woman more for "marrying well" than for anything she contributed. Does anybody doubt that a woman who marries a billionaire and makes no sacrifices for the marriage and does absolutely nothing will be "entitled" to much more in divorce than a woman that sacrifices much time and energy for the family, but who does not marry a rich man?  For successful men, the default contract is simply legalized plunder.

In discussing bargaining power, one usually assumes that there is a bargain involved in which each of the parties gets something they value. The definition of a bargain is

https://www.merriam-webster.com/dictionary/bargain

"an agreement between parties settling what each gives or receives in a transaction between them or what course of action or policy each pursues in respect to the other"


A woman marrying a much more financially successful man has essentially no legally enforceable marital obligations and no financial obligations upon divorce.  The man often has huge financial obligations to supply the woman her "entitlements."  So, it is obvious that she is getting entitlements, but what is he getting? She has essentially  no legal obligations. She is not obligated to have children, sex, or even give him companionship.  He is given nothing by the marriage transaction.

Now the paper comments:

...  Applying this view of agency to nuptial agreements such as prenups means that if a party is disadvantaged by the terms of an agreement but does not cancel the wedding, they have not necessarily acquiesced to those terms. Cancelling the wedding or leaving the marriage is not the only alternative to a bad agreement – another option is for the parties to negotiate an agreement that is mutually beneficial.

Part of this makes sense, the rest is absolute nonsense.  If she doesn't like the terms of the prenup she can offer terms that she thinks are fair and see if he agrees. If he doesn't agree, then there is a fundamental disagreement about fairness and a marriage between people with fundamentally different ideas of fairness makes no sense and should not happen.  If he signs a prenup with her terms, he has then acquiesced to her terms and is bound by them. If she signs an agreement, and gets married she has also acquiesced to the terms in the agreement, either the original or her terms.

If her terms are  a "feminist relational contract," and he signs off on those terms fine.  But if he does not sign onto terms of a "feminist relational contract," then it would be tyrannical, not to mention unfair,  to force "feminist relational contract" terms at a later date.  Very few financially successful men would sign a "feminist relational contract" if there were other marriage contracts available. Presumably, this is the reason that non-"feminist relational contracts" must be precluded.

The paper mentions "agency" many times.  It seems awfully important to preserve female agency. What seems to be overlooked is that "feminist relational contract theory" intentionally and maliciously deprives men of agency by not allowing men to negotiate objective prenuptial contracts that are enforceable.

One thing in common with both default entitlement schemes and  "feminist relational contract theory" is trying to use government power to obtain a better agreement than could be negotiated.  Prenuptial contracts are often despised by women and their lawyers precisely because it is almost always impossible to negotiate more than the default entitlements.  What does it say about fairness to men that the default entitlement men must provide is always more than the woman could obtain by negotiation?  So prenups allow men to negotiate terms and "feminist relational contract theory" tries to defeat the whole purpose of the negotiation by making the terms unenforceable. With the government's heavy thumb on the scale, women are then still able to get better terms than they could otherwise possibly negotiate.  This is just another iteration in the never ending struggle of the marriage entitlement ideology.


See:

The Defense of Default Marriage Entitlements and Epicycles

https://smolyhokes.blogspot.com/2017/10/marriage-entitlements-and-epicyles.html

Marriage Entitlement Ideology - No Good Deed Goes Unpunished

https://smolyhokes.blogspot.com/2018/01/marriage--no-good-deed-goes-unpunished.html

Beggar Psychology and Family Law Psychology 

https://smolyhokes.blogspot.com/2018/01/beggar-psychology-and-family-law.html

The arguments about unequal bargaining power seem simply contrived to justify legally plundering successful men.  No woman has to sign a prenuptial agreement.  If she is truly concerned about unequal bargaining power,  she can solve this problem in at least two ways:

• 1. She can only date and marry men that do not have more bargaining power than she has.  In fact, there are more such men looking for marriage than there are women willing to marry them.

From (Why men are having problems getting married)


https://www.cbsnews.com/news/why-men-are-having-problems-getting-married/

If it’s universally acknowledged that a single man with a good fortune needs a wife, the American economy may be now illustrating the inverse of that corollary: Poor men with dwindling job prospects are going to lack marriage prospects. 

On the high male income/wealth side there is an excess of women desiring marriage and on the low male income/wealth side there is a deficit of women desiring marriage. Reducing the entitlements would reduce the number of women desiring to marry financially successful men and thereby tend to equalize the bargaining power associated with the desire to get married. As an added benefit, it might also help the marriage prospects on the low male income/wealth side.

• 2. She can pursue the same career paths that successful men have pursued.  For example, instead of pursuing education in low paying specialties (e.g. underwater basket weaving?),  she can pursue education in the science, technology, engineering, or mathematics fields.  She will then be much more desirable to men, both because her income provides more to the family during marriage and because her high income makes her a safer choice for him if she divorces him.

In fact, marriage statistics seem to indicate that well-educated and high earning women are more likely to marry than other women.

From my personal experience, it is not clear that feminists care more about avoiding "bargaining power inequalities" or simply plundering men.  Protecting women from "bargaining power inequalities" by only considering marriage to women with similar bargaining power,  is not always appreciated and sometimes elicits absolute ire from some women. The fact that I avoided legal plunder was the thing that really seemed to matter to some women,  not bargaining power.  For example, see:

My Chinese Wife and Marriage Entitlement Ideologues

https://smolyhokes.blogspot.com/2018/05/my-chinese-wife-and-marriage.html

Does "Affirmative Consent" Contribute to Systemic Racism?

I have a number of concerns about "affirmative consent" rules on college campuses.  The effect, indeed the purpose,  of these rules is to remove the presumption of innocence and to remove the requirement for objective evidence.

1. There is no presumption of innocence and the burden of proof is upon the man to demonstrate that a woman's claim is false.
2.  There is apparently no evidence that "affirmative consent" actually works:     https://smolyhokes.blogspot.com/2020/01/rape-culture-and-affirmative-consent.html
3. Because no evidence, other than a woman's assertion is required, the panel making the "expulsion from college" decision must decide whether the woman's story is more credible than the man's story. If the man is black, will that make a difference to the panel?  With no evidence required, what role does underlying racism (even if unintentional) play in these expulsion decisions?

I don't know the answer to point 3, but  not requiring evidence seems to open up Pandora's Box for possible systemic racism.  What are the statistics?  For instance:

1. Are black men more likely to be accused of not obtaining "affirmative consent" than other men? 
2. Among accused men, are black men more likely to be expelled  than other men?

Also, consider that some women are trained to be against rationality and objectivity:


https://mckinneylaw.iu.edu/ILR/pdf/vol32p1247.pdf

" ... Therefore, it should not be surprising that “law” incorporates and reflects male gender traits. Some of these traits are identified as the preference  for rationality over other ways of knowing (e.g., intuition); for objectivity over subjectivity...  "

When people of good will are asked to make judgments, the careful consideration of evidence can  act as a restraint against their biases, whether conscious or not. When objective evidence is  not required and the presumption of innocence is removed, can justice possibly prevail?  Judgment  by intuition and subjective feelings?

https://smolyhokes.blogspot.com/2018/11/female.irrationality.html