Prenups and the Strange Reasoning about "Bargaining Power"

Assertions by some lawyers that prenups are unfair because of "unequal bargaining power" is fascinating. The reasoning seems circular in some cases?

Take a look at

Mackay, Anita --- "Who Gets a Better Deal? Women and Prenuptial Agreements in Australia and the USA" [2003] UWSLawRw 6; (2003) 7(1) University of Western Sydney Law Review 109

http://classic.austlii.edu.au/au/journals/UWSLawRw/2003/6.html#Heading84

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.

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 no obligation to supply children, sex, or even companionship.  He gets nothing in the marriage transaction.  

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.

I have seen similar comments about unequal bargaining power because women desire to get married more than men in a number of commentaries/articles. Furthermore, many women especially want to marry financially successful men.  The obvious solution to a difference in desire for marriage is to reduce the default entitlements so that marrying a financially successful man is not so beneficial.  Indeed there seems to be an excess of poor men desiring marriage:

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.

But, Anita Mackay indicates that she thinks the background (default) entitlements are inadequate?  This seems a bit of a circular loop.  

1. Financially successful men are in high demand and short supply.  Many women will compete for such men, giving these men high bargaining power in whether they get married, who they marry,  and whether to enter a prenuptial agreement.
2. Financially successful men are disinclined to marry without a prenup because they perceive the default legal entitlements as unfair with no legal benefits commensurate with the value of the entitlements.
3. The woman's bargaining power is low because she desires marriage more than the man.
4. To solve this bargaining power problem, Anita Mackay wants to increase the default entitlements.
5. With the default entitlements increased,  financially successful men will desire marriage even less.
6. The woman's bargaining power is now even lower because she really desires marriage even more, and has increased competition to worry about,  because of the increased entitlements.  Financially successful men are in even higher demand and shorter supply. GO TO 1