Beyond being a nice little (often religious) ceremony, is marriage a legally binding contract? Is anything expressed in writing with terms and conditions? And if so, then on top of divorce, can the one not wanting a divorce sue the other for breech of contract?
Marriage is a legal contract, but it’s an unusual one. As the Stanford Encyclopedia of Philosophy puts it:
it’s typically defined as a contract between 3 parties - spouses and the state, which is why it doesn’t necessarily have to have the common features of a contract (like suit for breach)
You don’t get married by the church. You get married by the state. A church ceremony means nothing unless you have a wedding license and pass the state’s requirements for marriage. The state then allows some religious leaders to officiate at weddings and sign the license, which is what makes the marriage legal after the license is turned over to the state. Of course, many secular parties can also perform marriage ceremonies. The ceremony is pure ritual and has no legal meaning. The important bit is the license, which requires you to adhere to the laws regarding marriage in the state you marry in and or later reside in as well as any federal laws. There are responsibilities that come as part of marriage but also many privileges. These also are spelled out in thousands of laws currently on the books.
So, marriage is extremely binding although the ceremony has nothing to do with it; the terms and conditions in writing are the laws of the state and country; and they also cover all breaches so you can’t add your own arbitrarily.
Well, not exactly – typically, the ritual requires an affirmative statement by both participants that they want to go through with the marriage (“I do”) and it has to be witnessed by some member of the public. The ritual is what commences the marriage, although you are correct that these rituals only have validity if they are properly backed by a state-granted license. Licensed marriages without god are valid; unlicensed marriages performed in a church are not.
Anyway, there’s a long debate on whether marriage is a contract or a status, but the trend is to consider it a contract – hence, the ever-increasing availability of divorce, even unilateral divorce.
–Cliffy
In Jewish law, there is actually a marriage contract called a ketubah. This spells out certain obligations between the husband and wife under Jewish law.
For example, my ketubah spells out that my wife gets to spend whatever money I make. I also have to take out the garbage and fix the toilet when it breaks.
In return, my wife agrees to occasionally have sex with me.
Sounds fair.
Is not the license a written document?
Are there not also ‘traditional’ requirements? I vaguely remember reading some translations of medieval ones, that included guarantees of household budget, amount of sex [on one it was at least once per month] and specific funds for the maintenance of children at a fixed rate per child, and certain investments of the dowry.
I wouldn’t mind seeing some sort of financial agreements involved, I always thought that a nonworking housewife got shafted, if the husband was not generous like my dad was, a serious lack of personal spending money or even refusal of allowing a household budget can be abusive. When I was volunteering at a womens shelter, it was not uncommon for the woman to have absolutely no access to any sort of money, the husband did all the shopping for everything. My mom had a household budget, and a spending money budget [she tended to put her spending money in the bank and invested it.]
When I got married, the Kesuvah (that’s how we said it back then) acknowledged a debt to my wife of, IIRC, $40,000. This was to compensate her for the fact that I could unilaterally divorce her (under Jewish law, obviously) and she had no recourse. That was the only clause they translated for me, so I have no idea what else we agreed to. I assume that this was a contract and enforceable as such in secular courts.
More of a signature sheet than a full document. The full document, if actually compiled, would be hundreds of pages long.
And in states that recognize “common law” marriages, there is not even a signed license. You can be deemed to be under a marriage contract solely based upon your actions (i.e. you lived and acted as if your were married for a defined period of time).
I have a friend that was never married in a ceremony or at the justice of the peace…but has gotten a legal divorce from her boyfriend that she lived with for 3 years.
Damn. I knew I should have held out for that clause.
No.
The divorce suit itself it the equivelant of a breach of contract suit. The recourse is to challenge the divorce, which doesn’t really work anymore. If you’re goal is to get the lions share of the assets, then you counter-sue for divorce on grounds that vilify the other party. - but these days it takes extraordinary measures to to get an unbalanced settlement.
Do you have a cite for that? I’ve never seen it described that way before.
In this area of the law, there can be considerable variation from jurisdiction to jurisdiction, and I don’t think there can be blanket statements about what marriage is. For example, the usual explanation of the marriage ceremony in Canadian common law provinces is that the couple marries each other. It is their exchange of vows that makes them married, not the action of the government.
The role of the person performing the marriage ceremony is to confirm in advance that the couple is eligible to be married, to lead them through their vows, and then to fill in the paperwork to ensure the marriage will be properly registered and recognized - but that person does not marry the couple. They married themselves.
This is an analysis which supports the argument that marriage is a contract - like other contracts, it’s the exchange of promises by the parties that seals the deal. Registering the marriage with the government only ensures that the marriage is properly recognized - just like when the parties to a real estate transaction register it at the government run Land Titles Office. It’s not the registration with the government that makes the contract effective, but the exchange of consideration by the parties to the sale.
(And, yes, in my jurisdiction, marriages are registered with the same government body that deals with the registration of land titles.)
Again, it depends on your jurisdiction. In my experience in Canada, the licence simply shows that the couple is eligible to get married. However, it means nothing unless they actually have a marriage ceremony. If they don’t the licence will normally expire after a certain time period. It’s the ceremony that makes them married, not the licence. I appreciate it may be different in other jurisdictions, but it’s not possible to give a definitive answer to this question without knowing the laws of the jurisdiction where the couple wants to get married.
Nor does the licence set out the terms of a marriage. They’re set out by the common law and the statute law. Only after the couple exchanges vows in the proper way do those mutual rights and obligations apply.
I looked up Norwegian law on this, and it’s similar to your statement about Canada. The ceremony is what makes them married. The legally required parts are: a licensed “marrier”, the couple stating their intent to be married, the “marrier” declaring them married, and at least two witnesses.
There is also paperwork before or after, but the ceremony is the core of the law.
I’ve always assumed that the license was the marriage, but that there were various people (e.g., religious officials and judges) whose signature finalized it. Then, what with all the precedent of millions of divorces, the couple were entering into a contract whose terms were defined by the way divorces were “currently” being adjudicated. So, for example, in “no fault divorce” states, it’s presumed that the parties know that they’re getting married under these conditions.
(IANAL, IAN married)
And, pan1 are you saying that people don’t divorce “for cause” anymore? I’d always thought that if one member caught the other doing something like having an affair, that they’d be able to use that to get a divorce settlement that was more generous than if it was an amicable divorce. At a minimum, doesn’t it help when people have prenuptual agreements to contend with?
Northern Piper is right that I was confining my answer to U.S. law.
The other half is a problem with terminology. When people think of the marriage ceremony, they think of the entire ritual process. Most of that process is pure elaboration. That is the part I was alluding to. However, there are bare minimum necessities. There is a summary page at US Marriage Laws.com that talks about what goes into a marriage here.
For our purposes, these are the most relevant.
There are 2 rules in a marriage:
Rule 1: The wife is always right.
Rule 2: If you think the wife is wrong, refer to rule 1.
In Canada, the federal Divorce Act recognises both no-fault divorce and divorce for cause:
However, the only difference between these two bases for divorce is time: for the no-fault option, you have to have lived separate and apart for a year before commencing proceedings, while for adultery/cruelty, the innocent spouse can begin the action immediately.
The conduct of the spouses doesn’t affect the distribution of property or support; adultery or cruelty are not factors in those calculations, which are based on the contribution of each party to the marriage, and whether one party needs support.
Support under the Divorce Act is governed by s. 15.2(4) & (5):
Property distribution in the event of a divorce is covered by provincial law, which typically does not take the conduct of the parties into account. For instance, The Family Property Act of Saskatchewan provides: