I was interested to see this story on the Radmacher case on Family Law’s blog about a YouGov survey question which suggested support for pre-nuptial agreements is very strong. I want to suggest some reasons why the support may not be that strong. YouGov’s data is here. When asked:
“A prenuptial agreement is a contract signed by a couple about to get married, agreeing how their assets would be split should they later divorce. Currently they are not enforcable in English divorce courts. Do you think the courts should or should not recognise prenuptial agreements?”
72% said agreements should be recognised. Only 16% thought they shouldn’t be recognised. 11% did not know. Interestingly, responses did not appear to vary much along gender lines, but did appear to vary on the basis of class, region and voting lines. Nevertheless, across the different groups support for recognition was strong.
Now I suspect many lawyers will be wondering what was understood by survey respondents to mean recognition. The question may plant a link between enforcement and recognition. Recognition might mean enforcement, it might mean judges should be influenced by it. We do not know. I do not blame the survey authors. They have limited resources to work with. They presumably had one question and did the best they could but I would urge practitioners and policy makers to think more deeply about the problem.
I want to make a broader point. There are, significant problems with asking survey respondents this kind of abstract question. It is clear to me, from research done on compensation claims in association with the Civil Justice Council, that survey respondents when asked an abstract question about their attitudes can respond very differently from how they respond when presented with realistic legal problems. This is particularly true where the public does not have direct experience of the phenomenon being discussed. How many of YouGov’s sample had any experience whatsoever of pre-nups. Almost none, I’d wager. Even where are likely to have more knowledge about a particular area of law there are dangers. Sentencing research has shown the public thinks sentencing is too soft in the abstract and yet when it looks at real sentences they are much more moderate.
I am NOT arguing though that we should ignore public-opinion. We should not: in fact we should understand it more deeply. Policy makers (and judges) should seek to understand much more clearly what underlying rationales exists for public opinion on key legal problems and what biases affect those opinions. Prenuptial agreements will not be enforced in the abstract: the relative wealth of the parties; the sacrifices made during the relationship; the circumstances in which the agreement are reached would all be likely to play a role in whether the public genuinely believed a prenuptial agreement should be enforced (which is the key question facing a judge or a lawyer negotiating a divorce settlement). For West Wing fans, the message is, “Those numbers are soft.” I firmly believe that understanding public opinion is an important part of developing a responsive justice system. That is not to say that public opinion should hold some privileged status, but we do need to pay more attention to it. However, if public opinion is to exercise a meaningful influence on legal policy then we need more in-depth work because what the public thinks on a street corner and what they think when presented with real cases (and faced with their own cases) are very different things. Understanding their reaction to real cases will provide a much more robust means of understanding how best to design a legal system. It represents understanding the difference between what the public thinks they think and what they really think.