The news is that increasing numbers of couples, when drawing up prenuptial agreements before marriage, are inserting an infidelity clause.
The clause means that if a partner is unfaithful during the marriage, he or she will receive a smaller settlement in any subsequent divorce.
This infidelity penalty bolsters the idea of ‘fault’ in divorces, at a time when many family specialist lawyers, judges and politicians have been trying to move away from the concept that when a marriage fails someone is to blame and must pay.
As the law stands, adultery is not taken into account by judges when they are asked to divide the assets in a case. The infidelity clauses in prenups have yet to be tried and tested in a court.
Prenups cannot be ignored by the court and this has become increasingly apparent since the case of Radmacher v Granatino in 2010. The lawyer for Katrin Radmacher, Ayesha Vardig disclosed the increasing popularity of the infidelity penalty in an article, shortly to be published, with a Cambridge University law lecturer, Joanna Miles. Miss Vardig argues that the effect of prenups is to ‘re-emphasise the concept of marriage as a legal bargain’. The survey, ‘Marriage, Rites and Rights’ will be released next month by Hart Publishing.
I believe that the infidelity penalty is a backward step and there will always be a strong argument to say that both parties contribute to the breakdown in a relationship. After all, Snow White very rarely marries Hitler!