Mariiage is a Contract: So Why Don't Actions of Contract Apply?

[pravnik]

@ralph124c

damn, we need some heavy experts here!

What, like a lawyer who practices in family law? Where are we going to find one of those?

For what it’s worth, the Texas Family Code doesn’t have a statutory definition of marriage as a contract, or any definition, for that matter; it says that a marriage license can only be issued to a man and a woman, but doesn’t actually say what a marriage is. Beyond that, marriage is only defined by the rights and obligations of the parties involved and the legal procedures for the creation and destruction of those rights, most of which are peculiar to the institution of marriage. Jurists and jurisprudence types often characterize marriuage as contractual, quasi-contractual, or a from of partnership, but marriage is really its own little thing.

Historically, judicial opinions discussed marriage in purely public status terms, emphasizing public-policy-driven state regulation of the institution of marriage andfocusing on the state’s role in preserving and protecting the marital relationship. Two more modern conceptions of marriage, however, treat it as a quasi-contract or as ananalogue to a commercial partnership. “Marriage as Contract and Marriage as Partnership: The Future of Antenuptial Agreement Law,” 116 HARV. L. REV. 2075, 2076 (2003).

[Northern_Piper]

@Nametag

What, pray tell, is the consideration exchanged in a marriage “contract”?

Mutual promises.

At common law, if A promises to do something for B, that’s not good consideration and the promise does not form a contract.

However, if A promises to do something for B, and B in exchange promises to do something for A, that mutual exchange of promises can be good consideration and a valid contract can be formed (assuming the things they promise to do can be the subject of a valid contract).

[Northern_Piper]

Getting back to the OP itself, as other posters have mentioned, there is considerable variety in the types of remedies available for breach of contract, so we shouldn’t start with the assumption that all known remedies for breach of contract should automatically be available in the context of marriage.

For example, if I contract to buy a specific piece of land from you, and you renege on the deal, I can get an order of specific performance from the courts, ordering you to transfer the piece of land.

But specific performance is not available for other types of contracts, notably contracts of employment/personal service: if I hire you to work for me, and you change your mind and don’t show up, I can’t get a court order forcing you to work for me, because personal service can never be compelled. All I could get would be damages.

That rationale would apply with even greater force if someone ever tried to get an order of specific performance for marriage - it’s just not available.

So that’s one point to bear in mind in relation to the OP.

Anothre factor to consider in response to the OP is public policy and legislative changes. It used to be that marriage looked a lot more like other contracts, with remedies that related more to contract law: - if you promised to marry and then broke it off, at common law you could be sued for breach of promise - which was similar to the law governing other types of failure to fulfill a contract, although only damages would be available as a remedy;

• only the “innocent party” could sue for a divorce, based on the other party’s adultery - which looks pretty much like the idea of fundamental breach - only the party injured by the fundamental breach can sue to rescind the contract, not the party who actually committed the fundamental breach;

• only the innocent party was entitled to alimony, not the one who committed adultery/fundamental breach.

• if someone lured away your spouse, you could sue for alienation of affection, or “criminal conversations” - which looked sort of like the tort of interfering with contractual relations.

But in most jurisdictions, these types of actions have been gradually abolished at the same time as no-fault divorce has been introduced. The policy choice made by the legislatures has been that while marriage has some aspects of contract to it, it’s really in a class by itself and that the law governing it is unique to this very personal relationship, not simply a variation on contract law. So instead of applying contract principles, legislatures have crafted legal principles that only apply to marriages - like no-fault divorce, needs-based support laws, and so on.