Family Contracts: Marriage and Divorce

Abstract

Legal marriage is a type of contract that confers a status on those individuals who marry. In this respect it substantially differs from the traditional idea that legal duties arising under contract law should be self-imposed by individuals, not dictated by the public in the form of a contract which everyone is required to enter if they wish to achieve the status of “married person.” This status consists of non-changeable terms about the indefinite duration of the contract, support obligations of spouses, the distribution of property, and the amount of taxes paid to federal, state and local government. One reason that unmarried persons might see this status as a desirable choice is that marriage has considerable economic benefits that are not enjoyed by unmarried co-habiting couples. One of the central questions of this chapter is whether this distribution of benefits between married and unmarried couples is justifiable. We look at several principles of just distribution in an attempt to answer this question. Another important part of this chapter is about the description and evaluation of gendered marriages in which laws in earlier times dictated specific roles for husband and wife. Third, and perhaps of most relevance in contemporary family law are questions about access to marriage. In this context, we examine both the 2015 Supreme Court decision overturning state laws prohibiting same-sex marriage, and the arguments given in the public debate about same-sex marriage prior to this decision. We will next look at some of the alternatives to traditional marriage such as private contracts and a recent proposal called “minimal marriage” which uses state regulation only to recognize and promote caring relationships between the parties to the marriage, regardless of number and gender. Our concluding discussion is about the exit rules enabling divorce or dissolution of a marriage in which we ask whether the rules for dissolution should be neutral with respect to moral and religious beliefs.