For better or worse, marriages as presently constituted in the West are not commercial contracts, but legal, social, and (optionally) religious arrangements conferring certain statuses on the partners in the eyes of the law, society, the relevant religious bodies, and each other. If you want a marriage contract such as you describe, there’s no point in complaining that marriage contracts as they exist are not that. It would take a legal historian to say authoritatively, but I am not sure they ever have been. There are various similarities and differences, but they are different entities.
What you would have to do instead, is design a contract such as you would wish a marriage contract to be, and consult with lawyers to see if it can be done in a manner that would be recognised by current law and practice as a valid contract incurring damages for its breach. If you find that it cannot be done, then you would have to agitate for such changes to the law as would be necessary to recognise it.
If that’s too big a job for one person, you could combine with others, register a domain—realmarriage.org is available—and begin a movement.
What you would have to do instead, is design a contract such as you would wish a marriage contract to be, and consult with lawyers to see if it can be done in a manner that would be recognised by current law and practice as a valid contract incurring damages for its breach.
Isn’t that what pre-nups are?
I don’t know to which extent the courts will be willing to enforce the “damages” portions, but pre-nups are valid contracts and fulfill much of the needs you’re pointing to.
Possibly, but pre-nups aren’t valid in some jurisdictions (the UK, for example).
Some other issues have occurred to me regarding the redesign of marriage contracts. If a marriage contract is to be simply an ordinary contract in the framework of contract law, then several issues arise, which Salemicus and others of like mind might not want. What, if anything is to distinguish a “marriage” contract from any other, if it can be drawn up between any two (or more) people of legal age to enter into contracts? If the contract says whatever the parties wish it to say, is there any longer such a thing as “marriage”? How shall “marriage” be defined for such purposes as widows’ pensions, the line of succession in intestacy, etc.?
Any contract can be varied or voided instantly by common agreement of the parties, because no third party has any legal standing to object. Thus marriage “contracts” of this sort would make divorce by mutual agreement instant. (If there is no other ground than decision to separate, it takes 2 years in the UK.)
The only alternative is to reform the law of marriage itself. This is not to say that it cannot be done, but it would be a long row to hoe.
For better or worse, marriages as presently constituted in the West are not commercial contracts, but legal, social, and (optionally) religious arrangements conferring certain statuses on the partners in the eyes of the law, society, the relevant religious bodies, and each other. If you want a marriage contract such as you describe, there’s no point in complaining that marriage contracts as they exist are not that. It would take a legal historian to say authoritatively, but I am not sure they ever have been. There are various similarities and differences, but they are different entities.
What you would have to do instead, is design a contract such as you would wish a marriage contract to be, and consult with lawyers to see if it can be done in a manner that would be recognised by current law and practice as a valid contract incurring damages for its breach. If you find that it cannot be done, then you would have to agitate for such changes to the law as would be necessary to recognise it.
If that’s too big a job for one person, you could combine with others, register a domain—realmarriage.org is available—and begin a movement.
Isn’t that what pre-nups are?
I don’t know to which extent the courts will be willing to enforce the “damages” portions, but pre-nups are valid contracts and fulfill much of the needs you’re pointing to.
Possibly, but pre-nups aren’t valid in some jurisdictions (the UK, for example).
Some other issues have occurred to me regarding the redesign of marriage contracts. If a marriage contract is to be simply an ordinary contract in the framework of contract law, then several issues arise, which Salemicus and others of like mind might not want. What, if anything is to distinguish a “marriage” contract from any other, if it can be drawn up between any two (or more) people of legal age to enter into contracts? If the contract says whatever the parties wish it to say, is there any longer such a thing as “marriage”? How shall “marriage” be defined for such purposes as widows’ pensions, the line of succession in intestacy, etc.?
Any contract can be varied or voided instantly by common agreement of the parties, because no third party has any legal standing to object. Thus marriage “contracts” of this sort would make divorce by mutual agreement instant. (If there is no other ground than decision to separate, it takes 2 years in the UK.)
The only alternative is to reform the law of marriage itself. This is not to say that it cannot be done, but it would be a long row to hoe.