Feminist Relational Contract Theory - A New Model for Legalized Plunder

Comments on:



===============================================



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



===============================================



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

Feminism Saving the Planet: Women's Value as Equals Versus as Sex Objects

(Note:  There are many strains of "feminism." This post commending feminism saving the planet is "equal opportunity" feminism and not the more malicious and tyrannical forms.)

Growing up in the 1960's,  before the birth control pill and the women's movement,  one huge problem was overpopulation.  Indeed, China was so concerned that China enforced a draconian one-child policy.

It appears that a better solution to overpopulation is simply providing equal opportunity and equal pay for the same jobs (not "comparable worth" nonsense).  Throughout the developed world most women have, like men,  chosen paid work outside the home.  When women get equal pay for equal work, they tend to have fewer children.

Fewer people on the planet means

1. Less industrial activity and hence less pollution and less greenhouse gases that contribute to global warming.
2. Less demand for more agricultural products to feed a reduced population so forested land need not be cleared to grow food.  
3. Less stress on almost all planetary resources.

So -- Equity feminism looks like a large part of the solution to saving the planet.

On a societal level here are a few speculations:

1. Birth control pill - People can increase sexual activity outside marriage without pregnancy concerns.  This increases sexual availability for people without the financial commitment of supporting a spouse and children.
2. No-fault divorce  -  Permitted people, primarily women, to divorce without cause.  Alimony often was insufficient to maintain  the standard of living without working.  More women thus entered paid work in the labor market.
3. With sex more readily available to men without commitment,  men reduce their valuation of women as sex objects and increase their valuation of women's financial contributions.  (In this sense, men start assessing the value of sex vs financial contributions more like women traditionally did.) Even women who might have preferred not doing paid work outside the home are now competing against working women that are more financially attractive to men in marriage and less dangerous to men in divorce. (See "  Beggar Psychology and Family Law Psychology"
   https://smolyhokes.blogspot.com/p/beggar-psychology-and-family-law.html and "Marriage Entitlement Ideology - No Good Deed Goes Unpunished"  https://smolyhokes.blogspot.com/p/entitlement-ideology-no-good-deed-goes.html)
4. These incentives lead to more stratification in the marriage market. People tend to marry financially comparable spouses even more than in the past.
5. Additionally, the financial dangers (e.g. alimony and premarital asset plunder)  via no-fault divorce of people "marrying down" increases the number, and value, of prenuptial contracts.
6. With their increased financial earnings (and therefore independence from men) and with their value as "sex objects" diminished anyway,  women did not need to cater to men's desire for physically appealing women.  Women became progressively fatter.  
7. With many women becoming less physically appealing to men, men's pursuit of happiness no longer required generating more income than they needed for themselves.  Men reduced their investments in education and their participation in the paid labor force as money became less important to them.  Their pursuit of happiness could substitute other, less expensive things,  for unappealing women. Video games,  online pornography, and (in the future) perhaps sex robots.
8. So long as women get equal pay for the same job, women are ready, able, and willing to take up any slack resulting from men's decreased educational investment and participation in the labor force. 
9. Item 6 diminished women's desire for men and item 7 diminished men's desire for women.  With desire diminished on both fronts, it should not be surprising that birth rates declined dramatically,  ameliorating the overpopulation problem that is putting so much stress on the planetary environment.

Women's Studies Thesis: Do Campus Rape Training and Affirmative Consent Work?

Suggestions for a Women's Studies Thesis on Campus Rape Training and Affirmative Consent Results.

It has now been 4 or 5 years (?) since campus rape training and affirmative consent rules were implemented on many college campuses.  I have been unable to find any statistics about the effectiveness of  campus rape training and affirmative consent rules.  Women's Studies programs should investigate this.

In particular:

1. Is there a graph or table as a function of time showing the reduction in sexual assault on college campuses that instituted affirmative consent and rape training?
2.  Are there comparisons over the same time period between colleges that did and did not institute affirmative consent and rape training?

In the absence of reliable statistics,  one can only speculate about both the effectiveness of the training and any possible negative side effects of the training.  From a skeptics point of view:

1. It seems unlikely that the type of men that commit rape are going to be deterred from rape simply because of this training.
2. On the other hand, men who would never commit rape, with or without the training, may get far more cautious about dating in general because they believe that there is no way to prove they obtained continuous affirmative consent.  Probably the dating pool of men on campus shifts toward more aggressive and less risk averse men and away from less aggressive and more risk averse men. (Note that this risk averse behavior has been seen in the response to the #metoo movement.  Men are becoming increasingly more careful dealing with women at work. Unlike the workplace where men need to work with women despite the perceived risk,  men do not have to date campus women if the perceived risk is too high. There are plenty of off campus women to date.)
3. Given item 2, has overall sexual activity decreased on campus?
4. Given items 1 and 2, has the fraction of sexual assaults (per say in every 100 dates) increased?
5. Does hookup culture increase because more cautious men reduce their dating?

Possible secondary side effects for study:

1. Men's enrollment in higher education is declining.  Does the training cause men to feel unwelcome on campus?  The decline could be simply coincidental.  Perhaps men, both those that did go to college and those that did not,  should be interviewed to determine what part, if any, the perceived atmosphere on campus played in their decisions.
2. Do women want the training to continue even if it is not effective?
3. If the atmosphere on campus is partly responsible for fewer men on campus, does it matter?

Comment on: Competing for Love: Applying Sexual Economics Theory to Mating Contests

https://www.researchgate.net/publication/318768331_Competing_for_Love_Applying_Sexual_Economics_Theory_to_Mating_Contests

https://www.sciencedirect.com/science/article/pii/S016748701630277X


This was an interesting paper.  One thing that the paper does not discuss is the influence of the government in sexual economics.  The highlights on page

https://www.sciencedirect.com/science/article/pii/S016748701630277X

include

•

Men compete both individually and in groups to amass resources to exchange for sex.

•

Because men can compete as groups, male competition is less zero sum than women’s.

The fact that men cooperate with other men in groups is highlighted, apparently meant to indicate that women do not cooperate in groups.  Indeed the paper comments

"The deficit in women’s cooperation with women has been apparent throughout history and continues to be evident among modern samples ... "

In my view the authors are ignoring some hugely successful cooperative strategies among women.  The authors talk about why cartels are not too effective for women, but ignore what has been very successful for women.  Collectively, women have been able to use the government to block, or at a minimum impede, a  man's capability to get a market price for his resources.  This is especially true for  men with substantial resources.  Consider:

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 remotely commensurate with his obligations.  

Even when women enter prenuptial agreements,  the women are often able to use government power to void or alter the prenup, thus removing a  man's capability to get a market price for his resources. Women also cooperate, sometimes successfully, to use the government to increase the demand for the group's sex by (among other ways)

1. Making prostitution illegal
2. Making it more difficult for men to obtain "mail order brides."  For example, some women in the United States are cooperating with each other against the interests of many competing foreign women who desire an American husband.  (Interestingly, this puts American women in collusion with very patriarchal societies [e.g. the Philippines] that want to keep "their" women from obtaining fair market value.)
3. Restricting substitutes like pornography and fembots

By and large, groups of women have been reasonably successful at using government to distort the market in their favor. As with most government distortions in marketplaces, there are winners and losers, with the losers attempting to counteract the government action.  For example, 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

A Female Preference for Irrationality? The Pure Nonsense of FEMINISTS & CONTRACT DOCTRINE

A Female Preference for Irrationality?  FEMINISTS & CONTRACT DOCTRINE


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; for abstraction over contextualization; and for hierarchical decision making over consensus or compromise. Contract law, like law more generally,  is said to be male-gendered because of the perceived presence of these traits.  In other words, contract law is not neutral; it is one of the many social structures that supports a male preference. Further, it is not objective; it has a perspective, but its point of view is masked."

In addition to being strange reasoning,  this seems to be self-contradictory. It is a male preference for "objectivity over subjectivity" but the law incorporates male gender traits and "it is not objective?" So if the law is not objective, how does the law incorporate the male preference for objectivity?

Perhaps, one must be irrational to make sense of this apparent contradiction?

Rationality versus other ways of knowing?  For something to be knowledge, it must be true. A belief that is demonstrably false cannot be "knowledge." A belief that is unsupported by objective evidence cannot be termed "knowledge" because it might not be true.  Intuition may be based on knowledge, but intuition itself is not knowledge. Sometimes intuition is not correct. When the intuition is objectively shown to be factual, then it becomes knowledge.

If contracts were never disputed, this paper's attack on rationality and objectivity would be moot. But, in any disputed contract, there will have to be an objective judgment of the actions to be taken. The judgment cannot be "subjective" with each party to the contract deciding that the judgment means different things.  That is, in the end, contract law has to be objective.  This paper seems to be arguing against writing contracts that are as clear and objective as possible, in favor of intentionally subjective and ambiguous contracts.  This would seem to be a recipe for ensuring that legal judgments are arbitrary and capricious, depending mostly on the whim of the court, rather than an agreement between the parties.

The Fantastic Assertion that Prenuptial Agreements Cause the "Feminisation of Poverty"

The rather incredible assertion in the links below that prenuptial agreements cause the feminisation of poverty seems implausible.  (Note that my expertise is in the theory of fair games and unbiased results. The default marriage entitlements are both biased and unfair in a mathematical sense.)


Who Gets a Better Deal? Women and Prenuptial Agreements in Australia and the USA

https://www.researchgate.net/publication/228146192_Who_Gets_a_Better_Deal_Women_and_Prenuptial_Agreements_in_Australia_and_the_USA

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

Prenuptial agreements have the potential to 'further entrench' the ‘feminisation of poverty’ upon divorce.[86]

 Perhaps it is different in Australia, but in the USA financially successful men want prenuptial contracts because men perceive  the default marriage entitlements as outrageously unfair. Consider:

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 remotely commensurate with his obligations.  

Three things are common about prenuptial contracts in the USA

1. Prenuptial contracts are almost always used to level the marriage playing field.  As noted above,  the woman has no obligations to the man.  A prenuptial agreement usually limits the obligations that the man has to the woman to achieve a better balancing of the obligations.  (For instance,  the prenuptial agreement may protect premarital assets.) 
2. A woman  marrying a much more financially successful man with a prenuptial contract almost invariably does better financially, both in marriage and in divorce, than if she marries a man at her own financial status without a prenuptial contract.  Is this really in question? 
3.  A woman marrying a much more financially successful man with a prenuptial contract will not do as well as if she were able to marry him without a prenuptial contract. This does not indicate that the prenuptial agreement is "unfair" to her.  

What fraction (FP) of women divorcing under a prenuptial contract end up in poverty? What fraction (FN) of women divorcing without a prenuptial contract end up in poverty? Unless FP > FN, how can prenuptial agreements be blamed for the ‘feminisation of poverty’ upon divorce?  My guess is that very few women divorcing under a prenuptial contract will be below the poverty line whereas substantial numbers of women divorcing without a prenuptial contract will be below the poverty line.  I am open to evidence, but at the moment, blaming prenuptial contracts for poverty seems to be based on some questionable reasoning.  

Family law provides a perverse set of incentives/disincentives for successful men. See 

• 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

Here are my best guesses, absent evidence to the contrary:

• The more courts interfere with binding prenuptial contracts,  the less likely financially successful men are to get married.  If men do marry, they are more likely to marry a woman with similar financial prospects.  (Indeed, this was my case, though some women hated my solution.  "My Chinese Wife and Marriage Entitlement Ideologues" https://smolyhokes.blogspot.com/2018/05/my-chinese-wife-and-marriage.html) This leads to stratification in the marriage market with financially successful men marrying financially successful women.  Even with a prenuptial agreement, these successful women are very unlikely to fall into poverty.  
• When less financially successful women marry similarly less financially successful men (without a prenuptial agreement), those women are more likely to be in poverty after divorce. 
• When less financially successful women have children and do not marry, these women and their children are the most vulnerable to fall into poverty.
• Unless evidence is supplied that women marrying with a prenuptial contract are more likely to fall into poverty than women marrying without a prenuptial contract, one can only speculate that the paper's assertion is probably false as it is very counter-intuitive.  My best guess is that the paper and/or its cited references do not have any evidence that (as defined above FP > FN) women divorcing under a prenuptial agreement are at higher risk of falling into poverty.  My best guess is that a simplistic abuse of statistics leads to the paper's improbable conclusion. It might be simple faulty reasoning that because women divorcing under a prenuptial contract get less than they would have gotten by default,  women are poorer than they would have been; therefore,  poverty increases.  But, one cannot conclude that because women got less in the divorce they fall below the poverty line.  For example, if PL is the poverty line, then it might well be that without the prenup the woman would be at 10*PL and with the prenup she would be at 5*PL.

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

From Facebook: I Don't Look Good Naked Anymore

https://www.facebook.com/paw.man.3/videos/10208007681138791/


Whew! Aging is not good, but I am not suffering from "dunlap's disease," I can still see my feet.


Dunlap's disease afflicts many older men. The symptom is when your "belly done laps over your belt."

Mutually Nonconsensual Sex

This would be funny if it were not so serious:


https://www.theatlantic.com/politics/archive/2018/06/title-ix-is-too-easy-to-abuse/561650/

Prenuptial Escape in Australia - Amazingly Bad Court Decision

If one is engaged and will not get married without a prenuptial agreement,  this is now "undue influence?"  So, one needs to get a prenuptial agreement before the engagement now? 

If a woman has signed a prenuptial agreement and decides later that she won't marry under the prenuptial agreement, is this undue influence on the man?  If he marries her anyway, does she lose the entitlements she had previously signed away in the prenuptial contract because of the threat not to marry under the prenup?  Want to bet?

When he changes his mind about whether marrying under the default marriage contract is wise and refuses to marry without a prenuptial contract, the law calls this undue influence. On the other hand, if she changes her mind about whether marrying under the prenuptial contract is wise and refuses to marry without the default marriage contract, the law does not consider this undue influence? 

This is a disgustingly bad,  asymmetric, and inconsistent decision. One of the latest epicycles to the marriage entitlement ideology. 

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

========================================================

https://www.cardiff.ac.uk/news/view/1002469-cardiff-academics-research-applied-by-the-high-court-of-australia


Dr Thompson commented, “The effect of this judgment is significant. The High Court of Australia has introduced a much more expansive and contextual understanding of what can constitute undue influence. It was previously unclear whether a court would find undue influence when one party threatened to end an engagement unless a prenuptial agreement was signed. The High Court has now established that the effects of such threats are important and relevant to whether a prenuptial agreement has been entered into freely.”

========================================================

My Chinese Wife and Marriage Entitlement Ideologues

When I first meet a woman roughly my own age (retired) and start conversing,  typical questions are about occupation and/or family.  Usually the questions about occupation terminate quickly after I mention that I was a scientist specializing in Monte Carlo methods;  there is not usually a mutual interest in science.  Inasmuch as I married late (38 years old) and I married a Chinese woman (27) from Shanghai, people, especially women are often very curious.  After the second or third time answering questions about my Chinese wife, I developed a fairly standard response, as indicated below.  The marriage entitlement ideologues seem to go crazy when I mention that I married a Shanghai woman who was not financially dangerous to me.

Timing

My understanding of family law made a late marriage likely. (I am analytical by nature, which is perhaps why science and mathematics appealed to me.)  Marriage stood out as probably the most financially risky gamble that I would ever make.  (See https://smolyhokes.blogspot.com/2018/01/dont-think-with-your-dick-valuable.html)  Family law often considered valuable licenses, credentials, and degrees as marital property if they were obtained during the marriage. Family law then credited the spouse with half the value of the degree in a divorce. Thus, it made no sense to consider marriage before obtaining my PhD. So, the law is responsible for some of the reasons that I did not start thinking about marriage and a family until after finishing my PhD.



Why a Chinese (Shanghai) Wife?

The short answer is that she was the first woman I wanted that said "yes."

I had made a very good stock market investment while working a bit between MS and PhD degrees. These large premarital assets needed to be protected by a prenuptial agreement.  I wanted a wife who was intellectually attractive, physically attractive, young enough to start a family, and not financially dangerous to me.

Perhaps it is different today, but 30 or 40 years ago most women I met were fervently against negotiating prenuptial contracts.  If I married a woman who would not negotiate compromises on a marriage contract, why would I believe she would compromise during the marriage? It made no sense to me.  These women clearly had very different values and a very different idea of fairness than I had.   These women and I were mutually unsuitable for marriage.  (At this point many of the women hearing my story volunteered, unprompted, that they would never have negotiated a prenuptial contract. Perhaps it was their way of confirming my assessment that most women would not compromise on marriage entitlements.  Judging from the tone of the comments, it sometimes seemed to be almost a matter of pride?)

When asked what I meant by "financially dangerous", I pointed out that family law punished good deeds and argued as in
https://smolyhokes.blogspot.com/2018/01/marriage--no-good-deed-goes-unpunished.html
https://smolyhokes.blogspot.com/2018/01/beggar-psychology-and-family-law.html
Most of the women did not argue with the logic behind avoiding a "financially dangerous" wife.  Many commented that they had never thought about the legal aspects of family law.  Most women were just interested and were not hostile toward me.

A small (20% ?) fraction of women seemed offended that I had analyzed the situation and had acted accordingly.  This small fraction was outright hostile and expressed an amazing list of accusations.  One would have thought that I had somehow negatively affected them personally.  Some of the accusations do not make much sense to me, but I will list them anyway.

1. Apparently wanting to negotiate a prenuptial contract is misogynistic. (Why?)
2. I was accused of having an Asian fetish. (I like all attractive women of any race.)
3. The reason I married a Chinese woman was to have a submissive wife. (I lived with her for 5 months before marriage and had no illusions that she was aggressive and not submissive.)
4. I had taken advantage of an uneducated Chinese woman's willingness to sign a prenup. (Nope, she has a MS degree in electrical engineering.)
5. The only reason she married me was that I was an American and she could stay in the United States.  This, of course, was my fault and not her fault. I was exploiting her due to a "power inequality" because I was an American. (She was a graduate engineering student at Clemson University in South Carolina.  There were probably ten times as many men in her classes as women. Additionally, she was physically fit, trim, attractive, and very smart.  I do not think she had any trouble attracting men.  It boggles the imagination that I had any special "American advantage" over the American men in her classes.  She had lots of available American  mate choices if she simply wanted to stay in the United States.)
6. The only reason that she would sign a prenuptial agreement was so that she could stay in the United States. (There were plenty of men in her engineering classes that did not have enough assets to need a prenuptial agreement.)
7. I married a Chinese woman to evade "feminism". (Nope, I married her because she said "yes," even though there would be a prenup.)
8. I was among too many men that were marrying foreign women and this was "unfair" to American women.  It was not clearly expressed, but it seemed to be some sort of supply/demand argument.  (This is absurd. First, I am not responsible for what other men do. Second, nothing stops American women from marrying foreign men. Interestingly, my argument was rejected  because it was  "far easier for American men to attract foreign brides than for American women to attract foreign grooms." Apparently, American men have a good reputation among foreign women and American women have a bad reputation among foreign men? No evidence was supplied that this was true.  But, even if true, I am not responsible for this reputation difference.) 

I emphasize again that only a small fraction of women were outright hostile.

Among the hostile woman, the verbal attacks almost never ceased;  the arguments just kept shifting.  They were determined to label almost anything  "unfair" and a result of a "power inequality."  First,  I was exercising a power inequality because of an assumed salary difference.  Second, when the first assumption turned out to be wrong, then I was exercising a power inequality because of citizenship issues. Third, when the second assumption turned out to be wrong, then there was a power inequality because of  "white male privilege."

Two things really seemed to irk these women. First, they were angry that because of good planning (a prenuptial contract and a wife with comparable salary) my wife got no post-divorce goodies. She got none of my premarital assets, she got no alimony, and she got no child support. In fact, at divorce time, she was making slightly more salary than I was.  It was somehow unfair that I had successfully protected my premarital and post-marital assets.  Second, they seemed angry that I had married an attractive, slender, younger woman from Shanghai instead of an American woman my "own age."  It seemed not to matter that the American women my age would not sign a prenuptial contract and were past their most fertile period anyway making children less probable. In fact, this further irked some of the hostile women.

I  do not know how many of these hostile woman had been married and what their financial circumstances had been. It is a good guess though, that had I married one of these hostile women, I would have been financially skewered in divorce because they would not have had a salary commensurate with mine.   Instead of picking up the skills and language of science and engineering like my Chinese wife, these hostile women seemed to have picked up the language (and skills?) from the lunatic fringe of the women's movement.  I wonder what fraction of these hostile women spent time in women's studies?

Beggar Psychology and Family Law Psychology

Beggar Psychology and Family Law Psychology 

There are some important differences, but at one level, one can get a fairly good idea of the psychological aspects of the marriage entitlement ideology by considering a man begging on the street.  Suppose that every day for 365 days,  man A passes the beggar and gives him nothing and man B passes the beggar and gives him one dollar.  On day 366 both man A and man B pass the beggar without giving him anything. It is an extremely good bet that the beggar is angry at man B and not man A. Despite the beggar having his standard of living improved for 365 days by man B, the beggar gives man B little appreciation. Instead, he is angry at man B because the beggar's standard of living drops by one dollar when man B stops giving.  In the beggar's view, man B is responsible for a drop in the beggar's standard of living.  

The family law psychology is eerily similar to the beggar psychology.  Consider man A and man B, both of which have substantially higher incomes than a woman.  Suppose that man A will not marry a woman because he does not want to share his higher income with her. Suppose that man B is willing to share his higher income with her and he marries her. Every day that the marriage endures,  man B is increasing her standard of living.  Despite the woman having her standard of living improved during the marriage, the woman gives man B little appreciation.  If a divorce ensues, the woman's standard of living would decrease dramatically if man B no longer shares his higher income.  In the law's view,  man B is responsible for a drop in the woman's standard of living.  But, whereas the beggar cannot force man B to continue supporting the beggar's standard of living, the law can force man B to continue supporting the woman's standard of living.  If, even after the law's intervention,  the woman perceives that her standard of living has decreased, it is because not enough is being transferred from man B to her.

It may take a bit longer to find financially successful women, but currently there are plenty of them. Biologically, men can afford to be patient. Keep beggar psychology in mind and avoid good deeds per:

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

Marriage Entitlement Ideology - No Good Deed Goes Unpunished

 Marriage Entitlement Ideology - No Good Deed Goes Unpunished

Men would be well-advised to take women's admonition "not to think with your dick" very seriously.

https://smolyhokes.blogspot.com/2018/01/dont-think-with-your-dick-valuable.html

Do not value women solely for their youth and beauty.  The important things are the things that endure. Youth and beauty are waning assets. Think also about important things that endure. Don't marry solely for waning assets.  Shared values,  the ability and inclination to communicate rationally, and the willingness to compromise are going to be more important for the long term.

Apparently, women need to be protected from "power inequalities" in marriage and their "bounded rationality." ( Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and Practice, by Sharon Thompson page 167 https://www.researchgate.net/publication/309847645_Prenuptial_Agreements_and_the_Presumption_of_Free_Choice_Issues_of_Power_in_Theory_and_Practice) The most logical way for women to protect themselves from "power inequalities" and their irrational behavior would be for the women not to marry men that had such unequal power.  The trouble is that women seem to prefer men with high status, income, wealth, and power.  Attorneys try to protect these women from their "bounded rationality," by making it uncertain that a prenuptial contract will be binding.  This protection, of course, comes at the expense of successful men. Thus, successful men should protect these irrational women from "power inequalities" by not marrying them. (That is, don't think with your dick.)

Because of "marriage entitlements," if a financially successful man does not marry a similarly financially successful woman, he should beware the mantra "no good deed goes unpunished."  As will be explained below, the more good deeds a successful man does, the more the law will punish him. For simplicity, and because she gets her entitlement whether she has his children or not, assume that the marriage endures for ten years or so and that there are no children.

Consider three different options for a financially successful man (there are other options not listed):

Case A:  Similar Financial Status 

If a financially successful man marries a similarly financially successful woman, he is relatively safe from legalized plunder. Basically, there is no net transfer of marital wealth between the spouses during the marriage or in a divorce. A high standard of living is possible, along with high savings and investment, when both spouses have comparably high incomes.

Case B:  Dissimilar Financial Status with a Prenuptial Agreement

If a financially successful man does not marry a similarly financially successful woman, there will be a net transfer of wealth from the husband to the wife during the marriage. The married man sacrifices the higher standard of living and the higher savings and investment that he would have had if he had stayed single.  Conversely, the married woman gets both a higher standard of living along with higher savings and investment than she would have had  if she had stayed single. In a divorce, there are lower savings and investment in case B than case A.  Assume the savings and investments are split evenly between the spouses. For the husband, compared to staying single, after divorce he has lower savings and investment. For the wife, compared to staying single, after divorce she has higher savings and investment.

What does the prenup do for him?  A prenuptial agreement can help minimize (hopefully to zero) any transfer of income and/or wealth after divorce.   

Case C:  Dissimilar Financial Status without a Prenuptial Agreement

Case C is almost the same during the marriage as Case B.  That is, if a financially successful man does not marry a similarly financially successful woman, there will be a net transfer of wealth from the husband to the wife during the marriage. The married man sacrifices the higher standard of living and the higher savings and investment that he would have had if he had stayed single.  Conversely, the married woman gets both a higher standard of living along with higher savings and investment than she would have had  if she had stayed single. In a divorce, there are lower savings and investment in case C than case A.  Assume the savings and investments are split evenly between the spouses.  For the husband, compared to staying single, after divorce he has lower savings and investment. For the wife, compared to staying single, after divorce she has higher savings and investment.

The big difference between case C and case B is that the woman expects a  transfer of income and/or wealth to her even after divorce. 

If a woman will not even communicate and negotiate what she needs in a prenuptial agreement, how can one expect good communication and compromise in the marriage?  An unwillingness to negotiate and a "take it or leave it" ultimatum on getting married without a prenuptial agreement is a power play that shows total disregard for the man's concerns.

No Good Deed Goes Unpunished

In case A,  the man is not making any financial sacrifices due to marriage and thus the law sees no "good deed" and thus will not even attempt to punish him in a divorce.   Not only that, but women generally do not see the man in a bad light.

In case B,  the man is making a financial sacrifice due to marriage and thus the law sees a "good deed" and will attempt to punish him to the extent that the prenuptial agreement can be circumvented.  The law, and women generally, will give the man no credit for the financial sacrifice he made for the marriage.  There is a negative sentiment that he is not a good guy because he should have simply trusted her and not negotiated a prenuptial agreement.  Instead, women will complain about "power inequalities" and being "forced" to sign a prenup that attempts to stop a  transfer of income and/or wealth after divorce.

In case C, the man is making a financial sacrifice due to marriage and thus the law sees a "good deed" that needs to be punished.  Furthermore, because he trusted both his wife and the family law system, the law sees more good deeds that the man has done and will punish the man even more harshly than in case B.  Because he trusted family law, family law will force him to provide her a marital lifestyle entitlement and will attempt to go after even premarital assets in any way possible to satisfy her unmet "needs."

  

Don't Think With Your Dick - A Valuable Marriage Insight

Don't Think With Your Dick - A Valuable Marriage Insight

When I was in college I heard numerous women complain that "men think with their dicks."  This expression was sometimes used simply to complain about men.  More ominously,  it was  also used to justify either indifference or often outright glee that a man had "been taken to the cleaners" by a wife that the speakers thought was not appropriate for the man.  There was absolutely no sympathy for the man; indeed, it was his fault.  Something like: " If he hadn't been thinking with his dick, he would have known she was a gold digger;  why else would she have married him?"  (The most common reasons for "inappropriate" wives seemed to be either a much younger woman than the man or perhaps he was ugly whereas she was pretty. My assessment was the speakers considered the wife  inappropriate because she was "out of his league".  Therefore, she had to be a gold digger.)

There were four things I considered from this:

1.  The law encourages gold-digging because it (sometimes) compensates women simply for "marrying well."

2.  Many women thought that there was nothing wrong with the law compensating women that they claimed were gold diggers, even if the sole reason for a large compensation was that they had "married well."

3.  Many women did not consider the man to be the victim of a gold digger, instead they blamed the man for his stupidity and "thinking with his dick."

4. He had simply trusted her and given her "the benefit of the doubt," even though a prenuptial negotiation could have resolved much of the doubt.  He was, in fact, thinking with his dick. Had he been thinking with his brain he would have realized that the benefit of the doubt should be given when the doubt cannot be removed, not instead of removing the doubt.  A true gold digger is unlikely to sign a prenuptial contract.


After these comments from women about men deserving what they get when they "think with their dicks", I was much more conscious that a man needed to be very careful not to let love cloud his judgment.   Marriage is often the most dangerous financial action that successful men ever take.  There is a great deal of value to the admonition not to "think with your dick."  Men should think with their brain and not marry women that are financially dangerous to them.

An American's perspective on "feminist relational contract theory."

From Russell Sandberg's comment on the book "Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and Practice"

https://www.researchgate.net/publication/309847645_Prenuptial_Agreements_and_the_Presumption_of_Free_Choice_Issues_of_Power_in_Theory_and_Practice

  "... And to cap it all, the book creates, develops and advocates a new approach: ‘Feminist Relational Contract Theory’. ..."

 Let me give an American's perspective on "feminist relational contract theory." Although "feminist relational contract theory" may sound new, it is really just government tyranny to take away the liberty of negotiating meaningful contracts.

 "Feminist relational contract theory" is basically gibberish for using government tyranny to ensure that nobody can know what a contract means at the time it is signed. If a prenup is signed as a "feminist relational contract," does it mean anything except that the government, ex post facto, is going to determine what it means? If it does mean something, why shouldn't the prenup specify what it does mean?

 Americans typically take a dim view of ex post facto laws, viewing them as unfair, unjust, and tyrannical. Maybe Americans are less tolerant of government tyranny after having experienced so much of it under English rule that a revolution was necessary to free America from English tyranny.

The Defense of Default Marriage Entitlements and Epicycles

The Defense of Default Marriage Entitlements and Epicycles

(Note: A number of references herein attempt to use "feminism" to justify their views on marriage entitlements.  It is worth noting that many women calling themselves feminists regard marriage and marriage entitlements as part of a past era when women were not considered competent, responsible, and rational enough to make their own decisions. I agree with the feminists that believe that women are competent, responsible, and rational enough to make their own decisions.)

This note will deal mostly with current marriage laws and their inconsistencies with women as full-fledged, responsible, and rational adults from one scientist's viewpoint (i.e., mine).  I will speculate occasionally about how the current situation arose historically,  but have not studied the history in detail. Thus, the comments and speculations about the past may be wrong in some instances, but the present day inconsistencies exist whether or not the speculations about the past are valid. In what follows, it is assumed that the man is the more moneyed spouse.

Before about 1920 (in the USA anyway) a prevailing prejudice was that women were too emotional and not rational enough to have the same rights and obligations as men.  Women were denied many basic rights such as the right to vote, and in many, perhaps most, circumstances the ability to sign contracts solely on the basis of their signature alone. The prevailing view seemed to be that either fathers or husbands should make important decisions for women. Upon marriage, men had an entitlement to sex and women had an entitlement to support.  Because abortion was illegal and relatively rare, the man's sexual entitlement usually guaranteed children.  Marriage was a lifetime commitment unless one spouse could be faulted for breaking his/her marriage vows.  Divorce was relatively rare. If a man broke his vows, divorce could ensue with him at fault. Her obligation to provide his sexual entitlement was terminated by divorce, but his obligation to provide her financial entitlement to support continued because she was not at fault. On the other hand, if she broke her vows, divorce could ensue with her at fault. His obligation to provide her a financial entitlement was (largely) terminated when she was at fault and she got very little, if anything. Call this the "entitlement/obligation" marital fairness theory.

Around the mid 1970's a man's entitlement to sex was terminated (a very good idea) but a woman's entitlement to support continued (a very bad idea). This was called "no fault divorce." Rather than starting with a blank slate and expecting legally equal adult partners to negotiate a suitable marriage contract, the law kept the old support entitlements despite a radically different marriage and divorce environment. One could understand if women who got married before the change were "grandfathered" (grandmothered?) into support entitlements in divorce, but the new laws also applied to new marriages. That is, women married after the laws changed had marital entitlements but no marital obligations. The new laws generally still entitled divorced women to live in "the  style that they had become accustomed to," otherwise known as the "marital lifestyle." Absolved of any responsibility to show that their husband was at fault for the divorce, women could freely divorce and yet still retain their marital lifestyle entitlement.  Not surprisingly, with their "marital lifestyle" guaranteed after divorce, many women decided that divorce was a good option and the divorce rate skyrocketed. One should not blame the women for choosing to divorce; these women responded rationally to the new laws and the incentives they contained. This is a completely rational response to the new incentives.  Men had no new incentive to divorce, so the divorce rate increase was largely due to women.

With the marriage and divorce incentives changed, men modified their behavior in line with the new incentives. This was more difficult for men because the default (no-fault) divorce terms were now heavily biased in favor of women. No doubt it was nice for women to divorce men at will and still be entitled to the marital lifestyle, but it was, of course, men who had to supply this entitlement. At least before the no-fault divorce laws, a man who had kept his vows did not need to supply an entitlement to a woman that broke her vows and divorced him.

Rather than starting from a blank slate and negotiating a marriage contract, some women very much wanted to keep their default entitlements. These default entitlements to women violate the principle of equality between men and women. How to make default entitlements consistent with equality so that a marriage contract does not start as a blank slate between equal parties?

From a scientific viewpoint, this is very reminiscent of the situation in astronomy. Before Copernicus (1473–1543) the prevailing astronomical principle was that Earth was the center of the universe ( Ptolemy's geocentric system)  and heavenly bodies had perfect circular motions about the Earth. The Ptolemaic system (https://www.britannica.com/topic/Ptolemaic-system) was inconsistent with the motions of some of the heavenly bodies, most notably the planets. To justify the "perfect circular motions" idea with the actual motion of the planets, epicycles were introduced. When superimposing epicycles on top of the "perfect circular motions" still did not quite match the actual motion? Why, just add epicycles to the epicycles!

Scientists know that even a totally erroneous theory can match reality if enough specialized "tweaks" are invoked to adjust the theory every time the theory would be inconsistent with reality and/or other well-established and verified principles. If one adds enough "epicycles", one can make almost any theory work. Even though Copernicus' heliocentric theory explained the motion of the planets vastly better than the Ptolemaic system, the legal authority of the time (The Catholic Church) just had to keep Earth as the center of the universe. In order to defend its ideological view, the Church was unwilling to accept Copernicus' heliocentric theory. Indeed, as Galileo would find out, the ideologues of the day considered it heresy to challenge the Church's viewpoint.

A similar thing has happened in marriage. The old marriage entitlement theory was based on women being less competent than men and incapable of negotiating for themselves. Despite overwhelming evidence that women are every bit as competent and capable as men, today's ideologues support these entitlements as if they were sacred. Any attempt to modify or even question these entitlements is treated almost as heresy by today's legal ideologues. I have commented before on how some  ideologues disparage even the questioning of these entitlements:

https://smolyhokes.blogspot.com/2017/08/defending-gold-diggers.html
https://smolyhokes.blogspot.com/2017/08/secondary-comments-on-defending-gold.html
https://smolyhokes.blogspot.com/2016/10/comments-on-ten-things-i-hate-about_29.html

First Epicycle

With men and women as equal and responsible adults, any marriage contract could be negotiated between them. The first modification of "equality" was to start with marriage contracts that still provided default (non-negotiated) entitlements to women.

Second Epicycle

But, men could still refuse to get married without a prenuptial agreement. So, the second modification tried to defeat prenuptial agreements if the woman signed a contract that she claimed she did not understand. As an adult, it is presumably her responsibility to understand the contract and seek legal advice?  Nope, this became the man's responsibility to make sure that she had legal advice. Her signature, though nominally an adult signature, was basically worthless to him. She could sign other binding contracts as an adult (e.g. real estate, business, and employment contracts) without legal advice and she would be bound by those contracts. Prenuptial contracts were special, her signature was as meaningless as a child's signature if she did not have legal advice.

Third Epicycle

If a man ensures that an adult woman has her own legal counsel so that she understands the prenuptial contract, the next legal shenanigan is to claim that the contract should not be enforced because it is "unfair." Often, this simply means that the distribution of assets is "lopsided" under the prenuptial contract. Never mind that the distribution of assets was "lopsided" when the couple married and she agreed to the contract's terms which let the man preserve his assets. Whether it was "fair" or not is subjective and it apparently was fair enough that (with legal counsel) she signed the contract. In some jurisdictions the court can decide not to enforce the contract because it is "unfair" at the time the divorce occurs because of "changed circumstances." The court seems to be requiring that the man predict the future? To justify breaking the prenup, lawyers give lists of "what if" scenarios for "changed circumstances." The scenarios seem to fall under just a few broad categories. The woman and/or her lawyer could have negotiated these scenarios, but there would have to be agreement on what was "fair." The trouble is that a man can reject anything that he thinks is unfair to him and simply refuse to get married under those circumstances. For large numbers of women and/or their lawyers, negotiation seems to be anathema and they would rather not negotiate what should happen in "changed circumstances" and hope that the court is sympathetic even when the "changed circumstances" are common occurrences that easily can be specified and negotiated.

Fourth Epicycle

Although negotiation would seem like the fairest way to arrive at contractual obligations in marriage (as negotiation is for contracts outside of marriage), some lawyers insist that negotiation is somehow "unfair" to women. Negotiation is apparently unfair because of "power" inequalities? (https://www.researchgate.net/publication/308752412_Prenuptial_Agreements_and_the_Presumption_of_Free_Choice_Issues_of_Power_in_Theory_and_Practice) Note that prenuptial contracts are not signed under anything that would be considered "under duress" in non-prenuptial contracts. Nobody is going to suffer dire consequences (e.g. signing a contract at gunpoint) if the contract is not signed. The most "dire" consequence of not signing an "unfair" prenuptial agreement is not getting married to someone that has a very different value system and concept of fairness. (This would seem a win-win situation in which both parties avoid a future with someone that has a very different concept of fairness.)  Indeed, the only real consequence (of not signing) is that the parties involved are in the exact same legal circumstances as when the negotiation started.  It defies logic and common sense that unchanged circumstances could possibly be an unfair result of negotiation. Furthermore, if the unchanged circumstances are somehow unfair, the unfairness cannot be because of the negotiation, because the circumstances existed prior to the negotiation.

It must take specialized legal theories that defy the logic that ordinary educated folks learned in their high school and college courses to justify why negotiations are unfair. The presumption of free choice? Either party can refuse to sign a prenup that she/he considers unfair. There must be some wonderful legal legerdemain logic to assert that the parties do not have "free choice."

So some lawyers want agreed to and duly signed prenuptial contracts voided due to concerns about power and free choice?  The alternative to implementing terms of a negotiated contract is imposing non-negotiated contract terms using  the power of the government. Imposed contracts would seem to be the epitome of using power to prevent people from exercising free choice in the contracts that they enter into. Doesn't this seem a little "ass backwards" considering the power and free choice comments leveled against negotiated contracts?

Some of the attacks on prenuptial contracts actually resort to asserting that women are irrational when it comes to marriage and their judgment cannot be trusted. Instead, it is apparently up to the government to protect women from women's irrationality. 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."

Fifth Epicycle

When prenuptial contracts are not enforced, the only reasonable option for men that consider the default marriage entitlements that they must provide outrageous, is not to get married. But even this option is under attack in many places and has been effectively eliminated in British Columbia.

Lest one believe that "free choice" is meaningful when it does not suit the marriage entitlement ideology, consider that some women want to force providing  marriage entitlement responsibilities upon men even if the men do not marry and publicly eschew marriage.



(See “A Feminist Proposal to Bring Back Common Law Marriage” by Cynthia Grant Bowman. http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1137&context=facpub )

( See:http://www.cbc.ca/news/canada/british-columbia/common-law-couples-as-good-as-married-in-b-c-1.1413551 )

Far from "free choice," recent entitlement ideologues use the ultimate in power, government power, to force their entitlement ideology upon men. For more comments on this see:

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

Repeating a previous comment that is relevant here:
The old marriage entitlement theory was based on women being less competent than men and incapable of negotiating for themselves. Despite overwhelming evidence that women are every bit as competent and capable as men, today's ideologues support these entitlements as if they were sacred. Any attempt to modify or even question these entitlements is treated almost as heresy by today's legal ideologues.
The entitlement ideologues are back to asserting that women are not rational and competent enough to make decisions for themselves because of "bounded rationality."

Summary 

The real "principle" of the marriage entitlement ideology is :
Whenever men figure out how to protect themselves under the current set of rules, the rules need to be changed to block if possible, or at a  minimum impede, that protection.