Secondary Comments on "Defending Gold Diggers"

Secondary Comments on "Defending Gold Diggers"

With reference to:

https://www.researchgate.net/publication/312323873_In_Defence_of_the_%27Gold-Digger%27

https://orca.cf.ac.uk/89315/1/Sharon%20Thompson%20In%20Defence%20of%20the%20Gold%20Digger%20final%20July%202016.pdf

https://smolyhokes.blogspot.com/2017/08/defending-gold-diggers.html


Gold diggers are a consequence of non-negotiated default marital entitlements that reward some women for no reason other than that they "married well."  Provided they "married well," what are they actually required to do for their "entitlement?"  Men don't generally label women as gold diggers unless the women appear to have unfairly profited from the marriage while giving little in return. I have never heard a woman referred to as a "gold digger" when there has been a negotiated prenuptial agreement. If every marriage had an agreed upon written contract, the term "gold digger" would largely disappear. There would be no need to "defend gold diggers," as there would be no gold diggers.

Although negotiated contracts are standard outside of marriage and widely recognized as the only fair way to produce a contract, many family lawyers object to negotiated marriage contracts. It is clear that the reason they object is that their clients don't do as well in a negotiated contract as in a government imposed contract.

 In negotiated contracts the parties have some contractual  benefits and some contractual obligations.  But, provided a woman "marries well" under default law, she gets many marital entitlements, with essentially no enforceable obligations.  This is a level playing field? Apparently according to "Feminist Relational Contract Theory," marriage contracts are questionable when there are issues of "bounded rationality."
( Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and Practice, by Sharon Thompson page 167) 

"Bounded rationality affects the parties' ability to think clearly about protecting themselves financially on divorce in the early stages of a relationship, which stages are often marked by altruism and commitment."

Reading this quote one might assume that there should be issues of "bounded rationality" for a moneyed man signing a default marriage contract? He indeed is very likely not to be thinking clearly enough about protecting himself financially in a divorce if he agrees to such an incredibly one-sided contract. She is surely getting financial entitlements from him, but what is he getting? Can he later invoke "Feminist Relational Contract Theory" to get himself out of a one-sided contract that, in practice, foists enforceable contractual obligations on him and no enforceable contractual obligations on her?

All of this could be easily solved with say a dozen standard marriage contracts to choose from ranging from contracts that women love and men hate, to contracts that men love and women hate, and everything in between. There are many conceptions of "fair" and a couple should sign a contract that both consider suitable enough. It is quite likely that the resulting marriage contract will be a compromise, giving neither party exactly what they desire. If the parties cannot agree on a suitable contract, then this is a very clear indication that their value systems are incompatible and they should not get married.

Perhaps things are better in England than America, but in America there is a subset of women who just cannot tolerate it when a man is able freely to negotiate for himself. There is almost always some highly questionable excuse to justify limiting men's freedom to negotiate. If a man is able to negotiate a better marriage contract than the default marriage contract then there is a "power imbalance" or the "playing field is not level." Or "bounded rationality," etc.

Binding Prenuptial Contracts in Scotland versus Catch-22 Prenuptial Contracts in England

I had a civil and pleasant exchange of ideas with Dr Russell Sandberg about prenuptial contracts in England and Scotland.

https://www.researchgate.net/profile/Russell_Sandberg


Dr Russell Sandberg  had concerns about binding prenups (which Scotland allows) and changing circumstances:

" I think my point would be that the level playing field may well exist at the time when the pre-nup is signed but that things may change as the relationship develops."

I replied:

Things change in all kinds of nonmarital contract situations, but one still has to abide by the contract in almost all other situations. Nonmarital contracts often have provisions for changing circumstances, but these have to be specified at the time the contract is signed and not simply made up later. Given that most of the "possible changes" are well-known, the terms under these possible changes can be specified in the prenuptial contract. Specifying the terms for the ten (one hundred?) most common relationship changes would provide clarity for almost all common changes.

They may be rare, but there may be changes not specified in the prenuptial contract. Or, perhaps one party simply changes her/his mind about the prenuptial contract? Scottish Law apparently has this situation covered as well because post-nuptial contracts are allowed. So, if one spouse does not want to be bound in the future by a prenuptial contract, that spouse can ask to renegotiate a new contract. If no agreement on a new contract can be reached, then the parties divorce under the existing conditions of the currently signed agreement. This sounds fair and reasonable. The moneyed spouse is protected by the prenuptial agreement. The non-moneyed spouse is protected by the ability to terminate the prenuptial contract any time she/he wishes , either by renegotiation or divorce. Thus, there is no reason for either spouse to be bound by a prenuptial contract for longer than it takes to file appropriate papers to renegotiate or divorce.

Scotland has it right.



According to Dr Russell Sandberg, English law does not permit a binding prenuptial contract. English courts uphold the prenup

" ... unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."

I replied as below.

I wish the English luck with keeping the judgement of what "would not be fair" from legal creep. I suspect such a provision in the hands of American lawyers would quickly result in a catch-22 situation where the prenup would be voided whenever it would be truly useful. As long as the prenup did not have much effect, it would be in effect. But, because the government's preconceived prejudice is that the default contract is "fair," then any major deviation is, you guessed it, "unfair." For an American lawyer this would be like shooting fish in a barrel. (No offense intended to English lawyers.) When the prenup would cause a major difference from the default situation without the prenup, then the prenup would not be allowed to be in effect. Perhaps this would work better in England than in America though?

At a minimum, the spouse A who no longer wants to be bound by the agreement should be required to communicate that in a verifiable manner as soon as possible. The other spouse B should not learn about the "unfairness" or "non-level playing field" ten years afterward when spouse A is trying to have the prenup thrown out or modified, and B can do nothing about it. B doesn't have the choice of making things more to A's liking or divorcing if no agreement can be reached. This is outrageously unfair to spouse B as spouse A is then attempting to impose a different contract that has never even been discussed. Spouse A has legal representation before agreeing to the prenup contract, but spouse B can have a contract foisted upon spouse B with no knowledge, no consent, nor warning.

The English Law might make some sense if any claimed unfairness were restricted to a month, perhaps at most a year, before the divorce. One reasonable solution would be for any prenup to be reaffirmed or renegotiated on a yearly basis.

Comments on "Common Defects of the Divorce Bill and Arbitration and Mediation Services (Equality) Bill 2016-17"

I read the article:


Common Defects of the Divorce Bill and Arbitration and Mediation Services (Equality)
Bill 2016-17



http://orca.cf.ac.uk/99619/1/Sharon%20Thompson%20and%20Russell%20Sandberg_Common%20Defects%20of%20the%20Divorce%20Bill%20and%20the%20Arbitration%20and%20Mediation%20Services%20Equality%20Bill%20%5B2017%5D%20Family%20Law%20447.pdf

This article (and others) appear on researchgate:

https://www.researchgate.net/profile/Sharon_Thompson16



"One of Baroness Deech’s most persuasive assertions is that her Bill follows a legal system
with proven success – Scotland. She argues England and Wales should seek to emulate
success of the Family Law (Scotland) Act 1985 by dividing matrimonial property equally and
by making prenuptial agreements binding. The 1985 Act’s effectiveness is supported by
Mair, Mordaunt and Wasoff’s insightful research, which indicates broad satisfaction among
Scottish practitioners with the legislation"

But, despite the "broad satisfaction," the authors attack the Family Law (Scotland) Act 1985 because it seems inappropriate to the authors in some circumstances. A few things are noteworthy:

1. Despite disparaging prenuptial contracts:

https://orca.cf.ac.uk/89315/1/Sharon%20Thompson%20In%20Defence%20of%20the%20Gold%20Digger%20final%20July%202016.pdf

the currrent article is an admission that default family law is not appropriate in all circumstances.

2. The Scottish Law allows binding prenuptial agreements, so that the law provides a way to modify the law in consideration of the circumstances.

3. The authors object to the Scottish Law even though they can freely negotiate modifications to address the circumstances that concern them.

4. What the authors apparently prefer is family law that, by default, addresses the circumstances that concern the authors while simultaneously forbidding prenuptial modifications to address circumstances that others deem unfair in the default.

5. "Indeed, limiting financial provision in a way that affects caregiving spouses reinforces structural inequalities between men and women in the family."  Scottish law would allow a prenuptial modification to alleviate this concern. But, the authors are against prenuptial contracts?

6. Note that prenuptial contracts can be worthwhile because of the very jurisdictional issues the authors raise. For example, although a woman might find the default family law in England suitable and appropriate to her circumstances, if she divorces in Scotland she would (apparently) be subject to a default family law that is far less generous to her.



So although the authors' own arguments indicate that default family law is not appropriate (see 5 and 6 above) in some circumstances, allowing people to negotiate modifications seems to be anathema to the authors. The preferred solution seems to be to have the government impose family law results that are so generous to women that it would be impossible to achieve those results by negotiation.  Indeed attorneys representing (non-moneyed) women are vehemently against prenuptail contracts (For example https://smolyhokes.blogspot.com/2016/10/comments-on-ten-things-i-hate-about_29.html ). This is excellent evidence that the attorneys believe that the default law is so generous to women that the attorneys could never hope to negotiate more, nor even as much.

Note that one common trick when disparaging prenuptial contracts is to state some "what if" circumstance that one perceives as a problem. Instead of viewing the circumstance as a point for negotiation, the trick is to label the entire prenuptial contract as "unfair" and refuse to negotiate on the "what if" items. With the entire prenuptial contract labelled as "unfair," the attempt is then made to revert to the default contract without bothering to discuss the "unfair" aspects of the default contract.

It boggles the imagination to assert that some family law contract is "fair" when what could not be achieved by negotiation must be imposed via the heavy hand of the government. It is probably no coincidence that women are generally more interested in marriage than men. Many men see marriage as the government imposing onerous financial obligations on them. In contrast, provided a woman marries a more moneyed man ("marries well"), she would seemingly have essentially no enforceable legal obligations toward him? Is it a big surprise that men are more "commitment phobic" than women?

With respect to men and marriage, the society often imposes almost tyrannical laws against men. Apparently too few people were getting married in British Columbia because of the negative consequences of marriage. Rather than change the laws so that marriage was not so awful a choice, so that more men might actually want to get married, British Columbia effectively forced unwilling men to be spouses. Once the heavy hand of the government forced men to be spouses, then the government could impose the onerous consequences of marriage that caused the men to eschew marriage in the first place. In British Columbia "no means no," except when a man says no to marriage. This seems very tyrannical?


https://smolyhokes.blogspot.com/2015/11/no-means-no-except-when-man-says-no.html

Defending Gold Diggers?

I read the article:

https://orca.cf.ac.uk/89315/1/Sharon%20Thompson%20In%20Defence%20of%20the%20Gold%20Digger%20final%20July%202016.pdf

and left a comment on the following site:

https://www.researchgate.net/profile/Sharon_Thompson16

Specifically on the article:

https://www.researchgate.net/publication/312323873_In_Defence_of_the_%27Gold-Digger%27?_iepl%5BviewId%5D=WrQ1k8im0OWVxbfo6sYa8UpyAfDKEARpW6kW&_iepl%5Bcontexts%5D%5B0%5D=prfhpi&_iepl%5Bdata%5D%5BstandardItemCount%5D=3&_iepl%5Bdata%5D%5BuserSelectedItemCount%5D=0&_iepl%5Bdata%5D%5BtopHighlightCount%5D=1&_iepl%5Bdata%5D%5BtopHighlightIndex%5D=1&_iepl%5Bdata%5D%5BfeaturedItem1of1%5D=1&_iepl%5BtargetEntityId%5D=PB%3A312323873&_iepl%5BinteractionType%5D=publicationTitle



The article makes a number of reasonable comments about the "gold-digger" stereotype, but the article's discussion of prenuptial contracts is simplistic and illogical. Perhaps the author will address the issues I raise in a subsequent article.

In my comments, I will assume, as the article does, that the woman is the less-moneyed spouse.


I agree with the article that gold-digging accusations are problematical.  The woman may have good reasons for negotiating terms that are beneficial to her.  The fact that a woman seeks beneficial terms in a negotiation for herself, by itself, is not wrong nor evidence of gold-digging. Neither is it wrong that a man seeks beneficial terms in a negotiation  for himself. The entire tone of this article is that somehow it is fair for a woman to negotiate beneficial terms but unfair for the man to do the same?  The author should explain why it is justifiable to impugn a man's character.


The article says

" ... a woman's reason for marriage, should not be questioned any more than a man's
and these reasons should not justify scepticism towards wives in receipt of the
financial share to which they are entitled on divorce."

The "financial share to which they are entitled on divorce" depends on the marriage contract that is signed. If both sign a standard marriage contract instead of a prenuptial contract, then they have both agreed to let the court decide the entitlement. If both sign a prenuptial contract, then they have both agreed to the terms in that contract. A man's reason for wanting a prenuptial agreement to ensure the financial share to which each of them is entitled on divorce should likewise" not justify scepticism" towards the man.

The article attempts to justify why it is alright for a woman, but not for a man, to seek beneficial terms by talking about "power" and "inequalities." This makes about as much sense as a home buyer in a seller's market complaining that the seller had more "power" because demand exceeded supply and thus produced an "inequality" whereby the seller was asking an "unfair" price for his house. Just as nobody is forcing the buyer to buy the house at a price the buyer considers "unfair," nobody is forcing a woman to sign a prenuptail contract that she considers "unfair."

Perhaps this UK article's mention of "power" is akin to some complaints I hear in the US about a woman being "forced" to sign a prenuptial contract.  When a man refuses to marry without a prenuptial contract, and the woman signs the contract, some people say that "he forced her to sign a prenuptial contract."  On the other hand, if a woman refuses to marry unless the man signs a standard contract, the same people don't say that "she forced him to sign a standard marriage contract."  Nobody has the power to force either person to sign a voluntary contract.


One more thing that I agree with is that it is usually a ridiculous notion to talk about both parties wanting the prenuptial agreement. Usually the man wants the prenuptial agreement while the woman would prefer the standard contract. On the other hand, it is probably true that both parties do not want the standard marriage contract. The language needs to be cleaned up and made consistent with the facts. For example, simply say that both parties have agreed to the prenuptial contract or both parties have agreed to the standard contract.

Much of the article's attack on prenuptial contracts in the UK is the same as the type of attacks as in the USA. For my thoughts on prenuptial contract attacks in the USA, see:
https://smolyhokes.blogspot.com/2016/10/comments-on-ten-things-i-hate-about_29.html

To see the advice I give to young men about marriage and prenuptial agreements see:
https://smolyhokes.blogspot.com/2015/11/what-people-especially-wealthy-people.html

For the record, I note that my technical expertise is in Monte Carlo methods and especially in fair game theory. See:
https://www.researchgate.net/profile/Thomas_Booth4