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Reply to "The Things that my Boyfriends/Girlfriends taught me..."

hey deb. mabelle's james here - we were having a discussion and she referred this thread to me, and i wanted to respond.

i can't speak for the situation in america; don't know much about the operation of family law in the US. i know a little bit about the Family Law Act in australia, though.

we hear a lot about pre-nups in show-biz weddings, and there's usually good reason for that. celebrity unions fail fairly readily but more importantly, it's often the case that one party brings a significantly higher earning capacity to the marriage and is fairly keen to take it with them when they leave. given the (increased?) likelihood of marriage failure and the predictability of litigation, it's not surprising that celebrities want to take extra steps to protect themselves - particularly when such huge amounts of money are at stake.

pre-nups have less application for us plebs (at least in australia). a pre-nup doesn't necessarily keep the parties out of the courts. it sounds like your ex is acting in bad faith, deb. there is nothing to prevent a party acting in bad faith from breaching a pre-nup and leaving the innocent party to institute expensive court proceedings for enforcement. even then, if the matter does get to court, there's no guarantee that a judge is going to determine that your application of the pre-nup is the correct application, particularly if property is acquired during the marriage.

mabelle and i plan to be married with a view to waiting a few years before purchasing property or having children. if for some (horrible) reason our marriage failed after, say, year three, the australian family court would look at our circumstances and say, "look, you've got no real property; you've got a second hand car; you've got a little bit of household furniture, and you've both got a reasonable earning capacity. split the property in half and get on with your lives." if, on the other hand, our marriage failed after we'd bought property and had kids, the court would take those factors into consideration and make a higher award in favor of the party looking after the kids on the basis of need. that's fair, and it makes sense - and, moreover, you wouldn't want to be left with inadequate means under a pre-nup if you had to take care of children.

i've got faith in family law principles and i think that they make greater provision for changing circumstances. the court is well placed to take in all of the facts at the time of separation and address the needs of the parties. a pre-nup may be made with good intentions, but it will always be blind to the changes that the future may bring.

moreover, the vast, vast majority of property disputes arising out of failed marriages are never litigated; something like ten percent actually make it to a final hearing in the australian system. very few people get everything they want when a marriage goes sour; but most people can sort something out.
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