Gender and the Eve-of-Wedding Prenup
Gender wars are alive and well in the blogsphere recently. While it seems to me that more than enough cyber ink has been spilled over boobgate and the fracas over Above the Law, I do think that the role of gender in law and culture continues to be actually difficult and worth discussing. I am teaching Family Law for the first time this semester and have noticed that my students often find ideals of formal sex equality extremely unsatisfying. As an example, I offer the enforceability of the eve of wedding prenup.
Let’s imagine a couple — Catherine and Fred. Catherine is a 23 year old nurse and Fred is a 39 year old neurosurgeon. On the night before their wedding, Fred’s lawyer presents Catherine with a prenup limiting her to support payments of $200 per week with a max of $25,000 should their wedded bliss end in divorce. Catherine signs — without any legal advice. Should this be enforceable?
This hypothetical is of course a case, Simeone v. Simeone, which was decided in 1990 by the Supreme Court of Pennsylvania. The majority rejected the old rule that prenups would be enforced only if they made reasonable provisions for the other spouse or were entered into after full disclosure of finances and statutory rights. The court’s new rule — that prenups should be treated like any old contract — ostensibly rested upon the invalidity of old stereotypes of women as homemakers and men as breadwinners. The court also suggested that treating prenups differently than other contracts would be akin to finding that women were the weaker sex, uninformed, uneducated and subject to unfair advantage in marital agreements. A paean to formal equality!
The concurrence mocks the majority’s assumptions about women’s “equality” in the real world. Justice Papadakos writes: “Mr. Justice Flaherty believes that, with the hard-fought victory of the Equal Rights Amendment in Pennsylvania, all vestiges of inequality between the sexes have been erased and women are now treated equally under the law. I fear my colleague does not live in the real world. If I did not know him better I would think that his statements smack of male chauvinism, an attitude that ‘you women asked for it, now live with it.'”
Would a legal rule that prenups should be treated differently than other contracts akin to the old rules that paternalistically protected women from both the stresses of society and themselves — like those that prevented women from tending bar? We could of course fashion a gender neutral rule that had the intended effect: prenups are unenforceable unless both parties had legal advice. Our reasoning might be that the parties are emotionally unable to engage in arms-length bargaining. They are about to get married, after all, and are likely in the throngs of idealism. Of course — someone is pushing the prenup in the first place so is obviously a bit more cold-eyed than the blissful image suggests. Would my legal rule be a veiled attempt to protect women from themselves? Perhaps — though it would have the effect of protecting men in some situations, too.
Like my students, I find myself torn between legal rules that confirm gender differences and those that ignore them.