# Mariiage is a Contract: So Why Don't Actions of Contract Apply? **URL:** \ **Category:** Factual Questions\ **Created:** [May 10, 2005, 4:43pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239 "2005-05-10T16:43:40Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![ralph124c](https://avatars.discourse-cdn.com/v4/letter/r/8797f3/32.png) [@ralph124c](https://boards.straightdope.com/u/ralph124c)\ **Post date:** [May 10, 2005, 4:43pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/1 "2005-05-10T16:43:40Z")
If marriage is a contract 9involving offer, acceptance, and consideration), then why isn’t a broken marriage contract (IE divorce) subject to “breach of contract” clauses, and why don’t damages apply? I’m all for no-fault divorce, but marriage involves major expenses, and changes in lifestyle-so why is it not subjet to ordinary contarct law, including actions of tort? I my wife dumps me, should i not be entitled to damages? ---
**Author:** ![Ike\_Witt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ike_witt/32/283_2.png) [@Ike\_Witt](https://boards.straightdope.com/u/Ike_Witt)\ **Post date:** [May 10, 2005, 4:52pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/2 "2005-05-10T16:52:33Z")
What makes you say that marriage is a contract? ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [May 10, 2005, 4:53pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/3 "2005-05-10T16:53:16Z")
What, pray tell, is the consideration exchanged in a marriage “contract”? ---
**Author:** ![SlyFrog](https://avatars.discourse-cdn.com/v4/letter/s/a3d4f5/32.png) [@SlyFrog](https://boards.straightdope.com/u/SlyFrog)\ **Post date:** [May 10, 2005, 5:07pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/4 "2005-05-10T17:07:08Z")
> [@ralph124c](#): > > If marriage is a contract 9involving offer, acceptance, and consideration), then why isn’t a broken marriage contract (IE divorce) subject to “breach of contract” clauses, and why don’t damages apply? I’m all for no-fault divorce, but marriage involves major expenses, and changes in lifestyle-so why is it not subjet to ordinary contarct law, including actions of tort? I my wife dumps me, should i not be entitled to damages? First, because as mentioned, it may not be a standard contract (though I could come up with forms of consideration, such as at least implied promises to pool wealth, sex, companionship, and other items that we do not immediately think of as consideration because they are not “hard” assets). Second, because marriage is obviously more than just a standard contract. Why are agreements made in promise of marriage subject to the statute of frauds? Because certain things in society are set apart as being important or having their own special classifications. Third, you are confusing tort and contract. Breach of contract is supposed to be resolved by remedies that give the parties benefit of the bargain or return them to their pre-reliance state. They are not intended to give extra damages on top of that. Some might claim that items like spousal support are really contract remedies in a different form (i.e. because the spouse stayed at home and raised the kids in reliance on the marriage covenant, she is entitled to be paid additional money to offset her damages from reliance on such agreement). ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [May 10, 2005, 8:18pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/5 "2005-05-10T20:18:39Z")
> [@adam yax](#): > > What makes you say that marriage is a contract? The state of Wisconsin, for one. > [@Wisconsin Statutes](#): > > 765.01 A civil contract. Marriage, so far as its validity at law is concerned, is a **civil contract** , to which the consent of the parties capable in law of contracting is essential, and which creates the legal status of husband and wife. I imagine most or all of the other states have similar wording in their laws. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [May 10, 2005, 10:37pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/6 "2005-05-10T22:37:05Z")
> [@Otto](#): > > The state of Wisconsin, for one. I imagine most or all of the other states have similar wording in their laws. What is the consideration? ---
**Author:** ![Sofis](https://avatars.discourse-cdn.com/v4/letter/s/e5b9ba/32.png) [@Sofis](https://boards.straightdope.com/u/Sofis)\ **Post date:** [May 10, 2005, 10:49pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/7 "2005-05-10T22:49:20Z")
> [@ralph124c](#): > > If marriage is a contract 9involving offer, acceptance, and consideration), then why isn’t a broken marriage contract (IE divorce) subject to “breach of contract” clauses, and why don’t damages apply? I’m all for no-fault divorce, but marriage involves major expenses, and changes in lifestyle-so why is it not subjet to ordinary contarct law, including actions of tort? I my wife dumps me, should i not be entitled to damages? I am not a lawyer, or an American, and I don’t actually know anything about how marriage law works where you (or, for that matter, I) live, but the idea that divorce would constitute a breach of contract seems rather strange to me. Divorce is not a breach of the contract, it is the standard way of terminating the contract. If I were to go to my landlord and inform them that I intend to move out, then I am not breaching the contract. I am terminating it through the process specified in the contract. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [May 10, 2005, 11:11pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/8 "2005-05-10T23:11:58Z")
> [@Ravenman](#): > > What is the consideration? I don’t know, as I am barred by law from marrying. When I am allowed to marry and in fact do so, I will let you know what the consideration is. It’s not my declaration, it’s the state’s. Wisconsin law says it’s a contract, therefore it’s a contract. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 10, 2005, 11:20pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/9 "2005-05-10T23:20:06Z")
Marriage is a contract of sorts, but then again, it isn’t, sort of the way soccer both is and isn’t football, har har har. Marriage is a peculiar social institution all its own and as such has its own set of rules. For example, most other contracts aren’t voidable by things like, say, concealing the fact that one is medically unable to gain or sustain an erection. Contracts are generally very easy to enter into and easy to get out of when all parties are in agreement, and the law of contracts seeks to facilitate this ease, clearly define what the responsibilities are, and clearly as establish when a party is in breach. With marriage, unlike contracts, partnerships and corporations, we actually make it difficult to end the marriage, and require court approval to do so even when both partners want to. Partnerships and corporations are likewise agreements to enter into an undertaking to achieve some agreed-on purpose. In a marriage, there is no agreed-on purpose beyond “being married” – the marriage is an end to itself. One could go on at length about comparing and contrasting the law of contract and the law of marriage (and one would be tempted to do so if one were billing), but the short answer is that it’s just apples and oranges. ---
**Author:** ![SlyFrog](https://avatars.discourse-cdn.com/v4/letter/s/a3d4f5/32.png) [@SlyFrog](https://boards.straightdope.com/u/SlyFrog)\ **Post date:** [May 11, 2005, 12:30am UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/10 "2005-05-11T00:30:18Z")
> [@Ravenman](#): > > What is the consideration? I think this is a dead end. I’ve already listed a bunch of items that may be deemed consideration, and the various surrenders of legal rights and other alterations of legal states you agree to undertake could also be consideration in its own right. Consideration is not necessarily the exchange of tangible assets. ---
**Author:** ![SlyFrog](https://avatars.discourse-cdn.com/v4/letter/s/a3d4f5/32.png) [@SlyFrog](https://boards.straightdope.com/u/SlyFrog)\ **Post date:** [May 11, 2005, 12:31am UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/11 "2005-05-11T00:31:22Z")
> [@Otto](#): > > Wisconsin law says it’s a contract, therefore it’s a contract. Actually, it doesn’t say “it’s a contract.” It says so long as its validity at law is concerned, it’s a contract. I imagine there is a reason for that. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [May 11, 2005, 1:58am UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/12 "2005-05-11T01:58:08Z")
> [@SlyFrog](#): > > Actually, it doesn’t say “it’s a contract.” It says so long as its validity at law is concerned, it’s a contract. I imagine there is a reason for that. A difference that makes no difference is no difference. Marriage is a contract. A valid marriage is a contract. Hair-splitting, unless you can show some actual difference the inclusion of the words “so far as its validity at law is concerned” modifies the legal meaning of the words “Marriage…is a civil contract.” ---
**Author:** ![Greg\_Charles](https://avatars.discourse-cdn.com/v4/letter/g/839c29/32.png) [@Greg\_Charles](https://boards.straightdope.com/u/Greg_Charles)\ **Post date:** [May 11, 2005, 3:20am UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/13 "2005-05-11T03:20:09Z")
> [@Otto](#): > > I don’t know, as I am barred by law from marrying. Now, don’t exaggerate Otto. You’re not barred from marrying. You’re only barred from marrying anyone you could possibly find attractive. ---
**Author:** ![SlyFrog](https://avatars.discourse-cdn.com/v4/letter/s/a3d4f5/32.png) [@SlyFrog](https://boards.straightdope.com/u/SlyFrog)\ **Post date:** [May 11, 2005, 1:47pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/14 "2005-05-11T13:47:32Z")
> [@Otto](#): > > A difference that makes no difference is no difference. Marriage is a contract. A valid marriage is a contract. Hair-splitting, unless you can show some actual difference the inclusion of the words “so far as its validity at law is concerned” modifies the legal meaning of the words “Marriage…is a civil contract.” The actual differences are clear. “X is a contract” is different than, “so far as its validity at law is concerned, X is a contract.” The former means that something is a contract in all aspects (including, presumably, enforceability, access to remedies like specific performance, damages limited to actual damages, etc.). The latter means that when determining whether the arrangement is valid, it is a contract. Have you gone/are you in law school? Have you studied the doctrines of legislative interpretation? I do not know how much of this you need explained without understanding your background better (although the above is a fairly basic understanding that when something is delimited, there is a reason for the delimitation). ---
**Author:** ![ralph124c](https://avatars.discourse-cdn.com/v4/letter/r/8797f3/32.png) [@ralph124c](https://boards.straightdope.com/u/ralph124c)\ **Post date:** [May 11, 2005, 3:17pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/15 "2005-05-11T15:17:04Z")
So, SLYFROG, please explain. You get married, and thus contract with another party (your wife). She divorces you (ie. breaks/breaches the contract of marriage). You have not defaulted on any of YOUR contract clauses (you have fulfilled your end of the contract). Does this mean that you are entitled to damages? Why are damages not the subject of divorce proceedings? So if you ain’t entitled to damages for breach of contract, i’d say marriage is NOT a contract-its more like a “bailment”. damn, we need some heavy experts here! ---
**Author:** ![SlyFrog](https://avatars.discourse-cdn.com/v4/letter/s/a3d4f5/32.png) [@SlyFrog](https://boards.straightdope.com/u/SlyFrog)\ **Post date:** [May 11, 2005, 3:46pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/16 "2005-05-11T15:46:10Z")
> [@ralph124c](#): > > So, SLYFROG, please explain. You get married, and thus contract with another party (your wife). She divorces you (ie. breaks/breaches the contract of marriage). You have not defaulted on any of YOUR contract clauses (you have fulfilled your end of the contract). Does this mean that you are entitled to damages? Why are damages not the subject of divorce proceedings? > So if you ain’t entitled to damages for breach of contract, i’d say marriage is NOT a contract-its more like a “bailment”. > damn, we need some heavy experts here! I’ve already explained. Your question here again begs the question by presuming that it is the exact same as an ordinary business contract in every shape and form, and that there is no difference between different types of contracts (i.e. consumer contracts which are subject to consumer protection provisions that alter remedies and rights from ordinary contract law). It is not. Until you recognize that, there will not be much use in going further. ---
**Author:** ![ouryL](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ouryl/32/6067_2.png) [@ouryL](https://boards.straightdope.com/u/ouryL)\ **Post date:** [May 11, 2005, 6:53pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/17 "2005-05-11T18:53:17Z")
It’s a variation of a partnership contract. :smack: ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [May 11, 2005, 6:56pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/18 "2005-05-11T18:56:25Z")
Marriage is a contract that deals with exclusive drilling rights on a specified piece of property. 😃 ---
**Author:** ![Ike\_Witt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ike_witt/32/283_2.png) [@Ike\_Witt](https://boards.straightdope.com/u/Ike_Witt)\ **Post date:** [May 11, 2005, 7:03pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/19 "2005-05-11T19:03:14Z")
> [@Otto](#): > > The state of Wisconsin, for one. I imagine most or all of the other states have similar wording in their laws. Doesn’t a contract set out the expected behaviour and relationship between two parties? And doesn’t a contract usually specify damages should one party be in breech of said contract? Where are those things in a ‘marriage contract’, not counting a pre-nup. In case it wasn’t glaringly obvious, IANAL. ---
**Author:** ![SlyFrog](https://avatars.discourse-cdn.com/v4/letter/s/a3d4f5/32.png) [@SlyFrog](https://boards.straightdope.com/u/SlyFrog)\ **Post date:** [May 11, 2005, 7:10pm UTC](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239/20 "2005-05-11T19:10:01Z")
> [@adam yax](#): > > Doesn’t a contract set out the expected behaviour and relationship between two parties? It sets out the agreements of the parties, so generally speaking, yes. > [@adam yax](#): > > And doesn’t a contract usually specify damages should one party be in breech of said contract? It can, but it does not have to. In fact, in laymans terms, if the damages that are written into the contract in the event of breach are seen as a penalty or otherwise not an attempt to estimate damages that truly result from breach, they can be disregarded (in other words, you are not supposed to be able to loan someone $10, and say “If you breach, the damages will be $5,000,000”). Damages are to reflect what was actually lost/expectation not met/reliance. [Next page](https://boards.straightdope.com/t/mariiage-is-a-contract-so-why-dont-actions-of-contract-apply/303239.md?page=2)