Some years back (2011) I authored an invited article for the American Bar Association’s Family Law Section publication the title of which was What Does Love Have to Do with It? Why a prenuptial agreement should not kill the romance, but should quell your clients’ fears about marriage and divorce.

The introduction to that article appears below, along with a link to the article.  

I’ve been invited to “update” the earlier publication of my article “The Psychology of (or Behind) Prenuptial Agreements”.

If you have some thoughts you’d like to share or some focus you’d like to see addressed, or some anecdote you’d like to share please write to me at [email protected].

Here’s the introduction:

Property agreements between engaged couples are nothing new. People have been making prenuptial agreements for thousands of years. 

• Soon after the Prophet Mohammad’s death, his great-granddaughter, Sukayna, who was married several times, at least once stipulated in writing that her husband was forbidden to disagree with her about anything.
• The Hebrew marriage contract, called the ketubah, is at least 2,000 years old. This contract was intended to protect women in case of divorce or widowhood by setting out the husband's financial obligation to the wife. This agreement also made it expensive for a husband to divorce his wife and so made marriages more stable.
• Dowries, often considered to be early prenuptial agreements, were mentioned in seventh century writings as a necessity.
• By the ninth century, in Europe, husbands were required to secure one-third of their property to their wives on their deaths as dower rights. Under English common law and in colonial America, “dower” was the share of a deceased husband's real estate to which his widow was entitled after his death. 
• Wives sometimes brought dowries of money or land to the marriage. These arrangements were covered in an agreement drawn up before the marriage.
• In fifteenth century England, Edward IV reportedly had a prenuptial agreement with Eleanor Butler sometime between 1461 and 1464. 
• Up until the 19th century in the United States, married women could not own property. This began to change when New York State passed the Married Women's Property Act of 1848. Before then, women needed marriage contracts to guarantee them property in case of divorce or the husband's death. 

Marriage as an economic vehicle

Historically, before the advent of modern “romance,” parents of the bride and groom negotiated a financial agreement on the new couple's behalf as marriage was often exclusively used as a means of distributing wealth and inheritance, making marriage choice more about the exchange of economic capital, and less about romantic love. Although economic independence was the main prerequisite for marriage, the reasons people married were heavily entrenched in the exchange of economic capital between families. Dowries and marriage as an economic exchange of capital remained the norm until the advent of the industrial revolution, marking the move from an agrarian to an industrial economy.

Marriage and romantic love

The second major force for “modern” marriage can be dated to 1740 when a flood of novels poured on to the market with romantic love as their theme. Hardy, Jonathan-Gathorne, Love, Sex, Marriage and Divorce. London: Jonathan Cape, 1981, p. 129. The transformation of the marital relationship, however, could not come from literature alone. With families clustering in cities to work in factories, economic exchange became less important as there was less land or inheritance to bequeath to future generations. As people moved from a peasant economy, and, therefore, the land, the familial exchange of economic capital became irrelevant as the land itself became less important. 

The musical, Fiddler on the Roof, set in Tsarist Russia in 1905, and based on Tevye and his Daughters (or Tevye the Milkman) and other tales by Sholem Aleichem, best captures the change in marriage choices and prenuptial contracts affected by the advent of the industrial revolution and the rise of “romance” in early nineteenth century Europe. The story centers on Tevye, a poor milkman, the father of five daughters, and his attempts to maintain his family and religious traditions while outside influences encroach upon their lives. He must cope with the strong-willed actions of his three older daughters, as each one's choice of a husband moves further away from the customs of her faith. In the end, after much soul searching, Tevye relents to the marriage of Perchik and his daughter Hodel. The world is changing, and he must change with it. Tevye explains these events to his astonished wife Golde. "Love," he says, "it's the new style."

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