KEY POINT: THE ‘MARRIAGE CONTRACT’ IS NOT A CONTRACT
Historically, the most remarkable change in marriage is that it is no longer governed by contract law, where it had resided for thousands of years. Marriage vows, promises, and ceremonial statements, such as, “To have and to hold, in sickness and in health, for richer or poorer, until death do us part”, bear little legal weight, are no longer a legal contract, and are unenforceable in law.
Marriage and divorce law is generally too unwieldy to remediate most unethical, immoral, or even illegal spousal conduct. Divorce proceedings in North America are rife with deception, fraud, embezzlement, perjury, defamation, and catastrophic financial and emotional outcomes. Children are especially victimized. The philosophy of “Marriage for Love”, relatively recent in human history, has not provided adequate guidelines about what to do when love breaks down.
Pre-nuptial contracts have begun to replace marriage vows, because they can be written in myriad ways, are enforceable, and are supported by all the power and precedence of thousands of years of contract law, with enforcement processes and procedures clearly understood by most litigation experts.
The simplest method to bypass the problems of typical marriages and divorces made on impulse is for couples to write and sign their own “cohabitation” contract, to replace marriage licenses and pre-nuptial agreements. This method is feasible right now by couples of any gender combination or sexual orientation.
The contract can specify certain benefits exchanges and obligations, with certain penalties for abrogating parts and/or all of the contract. Specific legal marriage documents would not be used, but a ceremony marking the signing of this cohabitation contract is feasible.
If the couple later have conflict over the contract provisions, it could be settled by standard litigation procedures. As in all important contracts, great care is needed for each signatory to commit fully to the process, with a clear understanding of the consequences of abrogating the contract and its provisions.
This may seem cold, but it’s actually quite hot. Couples who love and trust each other deeply would sign the contract willingly, because they wrote it, and “to have and to hold” would be legally defined and enforceable.
If they cannot negotiate such a contract, they may well not be ready for any type of cohabitation arrangement. It would also force irresponsible signatories to reconsider their negative behaviors in light of tangible legal consequences.
This contract method would not replace marriage for everyone, but it would create another legal route to recognize romantic commitment. It would motivate both signatories to stick together through “thick and thin”, since they would know that easy, no-fault, consequence-free divorce or abandonment was not possible. There would be serious and clear legal consequences for signatories who let themselves fall out of love.
