Law and Conversation

May 11, 2011

Miserable marriages in literature

To my disappointment, I couldn’t find any fictional stories containing prenuptial agreements to accompany my recent post on the royal wedding and prenups.  But fiction abounds in unhappy marriages, as the Guardian recently observed.

In addition to the Guardian’s recommendations of Edward Albee‘s “Who’s Afraid of Virginia Woolf?,” Gustave Flaubert’s “Madame Bovary,” and Henry James‘s “Portrait of a Lady,” I’d recommend George Eliot‘s “Middlemarch,” and Edith Wharton’s “Ethan Frome” and “The Custom of the Country.” And for a stunningly well-crafted saga of an absolutely dreadful marriage between two absolutely dreadful people from two absolutely dreadful families, John Updike’s “Rabbit” tetralogy is hard to beat. (To be fair, those dreadful people are three-dimensional, and from the circumstances that Updike presents, the reader can understand, if not excuse, why they’re as dreadful as they are.)

All of these books are classics, meriting reading and rereading.  But they’re only the tip of the iceberg when it comes to fictional depictions of miserable marriages.

Do you think prenuptial agreements would have mitigated the fallout of any of the marriages depicted in these works? And am I being too hard on Harry “Rabbit” Angstrom and his family?

May 6, 2011

Royal weddings, prenups, and hats

I couldn’t resist posting last week about Will and Kate’s excellent wedding, including a reference to UK freelance writer Alex Aldridge’s 3-part series of royal wedding posts on Above The Law. In one of those posts, Aldridge quoted speculation on both sides of whether the happy couple had a prenuptial agreement in place before they tied the knot.

After the wedding, the Telegraph reported that they did not: the newspaper quoted an unidentified friend as having said that Prince William held firm against legal advice to do so, saying he loves and trusts Kate completely. We don’t actually know whether this report is true, though I think we can assume that the Telegraph wouldn’t have printed this story if its editors weren’t pretty confident that the information was reliable.

As a lawyer, when I hear stories of a person’s disregarding advice of counsel or not bothering to seek it in the first place, I usually roll my eyes at the person’s folly and poor judgment. Every rule has its exception, though, as lawyers and judges well know. If the Telegraph’s report is accurate, I think William got it right.

Many people like to punt the responsibility for their decisions to their lawyers–and uncritical spectators or reporters often enable them to get away with it. I’ve seen plenty of news stories that quote people as saying that they’d just love to do something, such as explaining some questionable behavior or testifying in their own defense, but their [impliedly overly cautious, mean, nasty, insensitive, and/or moneygrubbing] lawyers won’t let them.

That’s just not correct. Lawyers don’t make those decisions:  the client does.

I can imagine that Prince William might have been under some pressure from other members of the royal family or their staff to insist on Kate’s signing a prenuptial agreement. (A spokesperson denied it, in which case, good for the royal family.) If he had been, his easy course of action might have been to cave and tell Kate “Darling, I’m so sorry, but The Firm insists that you sign a prenup. Our lawyers have drafted something and they told me that we just have to sign it before we can be married.”

But think about it: nothing says “I don’t/my family doesn’t trust you, and I’m going into this marriage with the idea that there’s a decent chance we’ll get divorced” like “I want you to sign a prenuptial agreement.” Could anyone have blamed Kate if, had she been presented with such an ultimatum, she had thrown her sapphire engagement ring back at William, canceled her fittings with Sarah Burton, and moved out?

If the royal family’s lawyers advised William to require a prenup, they were unquestionably doing their job. I’ve written about prenuptial agreements before for the Illinois Bar Journal, and many experienced lawyers and formerly married people alike believe it’s foolish to marry without one, at least when one member of the couple has substantially more property or earning power than the other, and in the case of subsequent marriages where one or both spouses want to protect their children’s inheritances. New York magazine ran a piece a while back with some coaching on some less blunt, yet completely clear, ways to approach this sensitive subject with the love of your life.

Still, even lawyers may disagree on the advisability of prenuptial agreements in particular situations. Though I agree that there’s a place for prenups, it seems to me that in the context of a first marriage with no kids, more often than not, trusting your intended without exacting signatures on a legal instrument is the right course of action–assuming that you’ve acted with due care and diligence.  That means getting to know each other over a reasonable period, fully disclosing your respective backgrounds and positions, meeting family and friends, and perhaps living together. (And being in love, yes.) Will and Kate did all of those things. Nothing’s ever certain, but I’d wager that their union will endure with no regrets for no prenup. Why marry someone you don’t trust? Especially in the 21st century, even royals can always wait until they’re sure.

The Blueness of Tara Palmer-Tomkinson absorbed much of my attention during the part of the wedding that I watched–far more than Princess Beatrice’s Medusa-like hat (as characterized by an old friend of mine), made (and defended) by the same designer, Philip Treacy. How about you? Do you think she’ll ever wear that stunning ensemble again?

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