'The Gold-Digging Trope in Family Law'

Abstract: More than forty years ago, Lady Summerskill observed that ‘we have heard so much … about a woman supporting her husband that I suppose that soon “gold-digger” will be applied to both sexes’ (HL Deb (1969) 305 col. 862). Her prediction is understandable, as at this time the sexual revolution, the Equal Pay Act 1970 and impending divorce reform indicated significant advances towards equality between men and women. Today, however, ‘gold-digger’ remains a term almost exclusively applied to women.

This paper will argue that one of the reasons for this is that the definition of ‘gold-digger’ has evolved into a caricature that is not associated with men, and further, that the gold-digging trope has influenced social views about modern equality claims in family law. Recognising the power of this trope is important in light of the current policy emphasis on private ordering, whereby couples are encouraged to make contractual agreements determining the legal consequences of their relationships. In particular, this paper will show there is evidence that prenuptial agreements (prenups) are being used by those who believe they need protection from gold-diggers.

I will argue that the gold-digging trope is not being properly factored into theoretical and practical questions about how contracts like prenups are made and enforced. Yet accounting for perceptions around gold-digging is important, because as contract theorists like Posner (2000) assert, the reality of contracts is complex and ‘powerful social norms may play a greater role in regulating contracts than the law does’. If the influence of gold-digging assumptions is not fully recognised, our understanding of the context in which nuptial agreements are made is incomplete.

 Bio: I am a Senior Lecturer in Law at Cardiff University. My research interests are in the areas of family law (in particular, adult relationships, prenuptial agreements and the financial consequences of relationship breakdown) and feminist legal history. I am co-convenor of the Law and Gender and Law and History research groups at Cardiff and am co-editor of case notes for the Journal of Social Welfare and Family Law. My monograph, Prenuptial Agreements and the Presumption of Free Choice (Hart 2015) explores the interface between contract and family law and uses empirical research and feminist relational contract theory to present alternative approaches to nuptial agreements in practice. It was shortlisted for the SLSA and SLS book prizes and will be available to purchase in paperback from 26^th October.