Adjudicator Feedback 71/75(Spanish) > 영어토론방

Note: Below Adjudication Texts were translated from English to Spanish by Google Translation.

http://debatewise.org/debates/1150

Motion : PRE-NUPTIAL AGREEMENTS SHOULD NOT BE RECOGNISED IN DIVORCE COURTS

Defending: Mexico, Opposing: Estonia

Decision by Adjudicator: Bmarusic

Firstly I would like to congratulate both teams for a very well engaged debate. Both teams engaged with arguments placed by the opposite side in this very controversial debate (from a legal point of view) which I was really looking forward to adjudicate. Having said that I will first give the adjudication and than the elaboration of the decision. I gave the win to the No“side. In doing so I found that the crux of the debate was revolving on 2 issues

Issue no.1 the contractual basis of a prenuptial agreement

The first sub point in this was the making of one , and this is where the side Yes“ stressed on the fact that parties enter this agreement with no clue of what future holds for them , that they are guided by their emotions rather than their reason and that they can be abused while entering this contract. The No“ side stressed and elaborated very extensively that there is a legal framework which adequately deals with the issues raised, that there are persons (namely lawyers) who guide people through this system and because of that a prenuptial agreement is a more informed decision with bearing in mind future consequences than a marriage without a prenuptial agreement. Unfortunately the Yes“side never tackled this issue sufficiently.

Second sub point is the content of such a contract, and Yes side used this in order to demonstrate the abuse argument, which was efficiently rebutted by the No“ side stating that abuses occur in every system, but do the fact that a negotiating process exists the decision is more informed for both parties plus the fact that this contract usually insures the division of property and roles inside a prospective marriage, this contract gives a contour of a marriage which both sides find adequate to achieve a harmonious life together. This point was never tackled by the Yes“side.

Third sub point is the purpose of such a contract, and the No“side stresses that the purpose is the division of property and stipulating rights and obligations of spouses (such as fidelity and respect, or not, depending on what a couple deems important, not here to judge on peoples preferences), and aiding a couple when these are all broken a peaceful transition to singlehood. The response of the Yes“ side was not adequate , because stating that what happens afterwards with the contract is irrelevant, and that only the specific time of entering a contract is relevant in this debate, is a bit naive. Firstly it's because you never demonstrate the causal link between the entering a contract and consequences it produces (which is a bit self evident), on contrary you dispute the mere existence of one. Now I was left wondering whether or not this was due to the fact you are trying to portray this contracts as void from the very begging, meaning that it has no legal strength nor validity in producing the consequences, or are you just ignoring the fact that a cause (in this contract) has effects( legal consequences). Secondly was the fact that you never dealt with the analysis of the causal link between contract- marriage-divorce presented by the No“side.

Issue no.2 the individual approach to marriage vs. the State one I found that this issue which was raised by the No“side was a very interesting one, stating that some people find that their definition of marriage is different than the state definition of marriage and that they should have a right to define what love, devotion, obligation and marriage is, and that they should not be succumbed to the perspective of marriage which they themselves don't agree with. Unfortunately the Yes“ side did not tackle this issue directly, they were more going around it, trying to nit pick, and unfortunately for them they left this argument intact.

Decision by Adjudicator: DrNo

The question that was never properly addressed by the proposition is that if I enter a pre nup because I want to where is the harm in that? Don’t I have as an equal a right as not to have a pre nup even if the opp are right and it is legal why can’t I just refuse to use it? If the list of harms you gave is true, then if it were possible to leave I would leave this second without said divorce. The case which was predicated on harms was also slightly problematic as it required stating that harms could create an imperative that would be true in all circumstances and would hold despite the numerous exceptions that the opposition raised.

There was also the contiuned refernce by the proposition to the list of harms they had offered when the opposition raised arguments suggesting that the list of harms had problems. This was problematic as it hindered engagement and made prop look like they were trying to bootstrap their own side by rebutting arguments against the reality of harms by reference to said harms.

In general there was a misunderstanding about some of the principles of divorce law and what constitutes a pre nup and what doesn’t. The notion of “state imposed system was a little bit irrelevant as did the repeated references to children. There was also a failure to delve into the theory of what marriage is and the assumption that it was some kind of monolithic entity. The oppositions arguments also tended towards the generic with assumptions being made (i.e. people consent to things ergo, its okay). There was also a lot of assumption made on their part that all marriages were uniform and thar circumstances didn't vary.

Overall this was a weak debate

Narrowly this goes to the opposition.