This is stemming from the recent threads on gay marriage, civil unions, polygamy, etc.
What legal features of marriage could not be replicated by a generic contract?
Also, assuming a reasonable accurate legal facsimilie of marriage can be created through contract law… what’s to prevent such a contract being entered into by an arbitrary number of persons? How might the courts deal with divor… er… breach of contract in these cases?
Spousal benefits extended by private companies.
Last week my SO and I rented a car. To add a spouse as a second driver would not add to the rental cost. To add a different person as a second driver would have incurred an additional fee. I could see this same situation occurring in hospitals (non-spouses not allowed to visit), health club memberships (couples rates), etc.
I can’t recall all of them but believe there are many legal rights under a marriage that cannot be handled by contract.
Off the top of my head, there are testimonial privileges: e.g. wife cannot be forced to testify against her husband. To be technical about it, there are actually two privileges. First, if spouse does want to testify against current spouse, she cannot be compelled to, but the testifying spouse can waive this privilege if he or she wants to, i.e., if wife wants to testify against husband, then she can waive this privilege. But there is a second privilege that the testifying spouse cannot waive. If you say something to your spouse while married, e.g. “I just killed someone” then that communication is privileged even if you get divorced, and your spouse cannot waive the privilege. These privileges vary from state to state and they are complicated and there are exceptions and exceptions to the exceptions, but that’s the general idea.
Second, if you die without a will then the law in most states passes property onto the surviving spouse. Now, of course you could “replicate” that rule by drafting your will. But in several states a surviving spouse has certain rights to challenge a will.
Third, family law in most states has specific rules for dealing with custody of children after a marital dissolution. I do not believe that these could be replicated by contract.
Fourth, the spouse is, I believe in every state, treated as the closest of next of kin for purposes of making medical decisions about critical care etc. Not sure whether this could be replicated by power of attorney.
I’m sure somebody out there will be along shortly with more examples. These are just off the top of my head.
Most of the difference boils down to this: A contract (usually) cannot bind non-parties to the contract. So the hospital doesn’t have to give you visitation rights, businesspeople don’t have to give you couple discounts, and (certainly) the state isn’t obligated to give you benefits that gives to spouses.
As between the contracting parties, though, a contract can replicate most of what is created by a marriage.
Q: If marriage is a contract, how come I can’t sue for breach-of-contract (when the other party wants a divorce)?? :smack: