To Have and to Hold – Part 2 – Contract, What Contract?

So, what’s all this talk about a contract?

And forgive me, but this post is going to get a little technical.  But not too technical. 😊

If you haven’t, you might want to read part one first to understand this post’s jumping off point.  Also, nothing I’m going to talk about will cover all of the intricacies of the law, or the evolution of marriage law, nor will it constitute legal advice.  If you want true legal advice, please go hire an attorney.

Here we go . . .

When we get married, we apply for, receive, sign, and legally record a “license.”  According to Black’s Law Dictionary, a license is: “A permission, accorded by a competent authority, conferring the right to do some act which without such authorization would be illegal, or would be a trespass or a tort.”

When we think of a license we think of things like a driver’s license, or maybe a hunting and fishing license, or maybe a conceal and carry permit.  It is a specific activity that we are given permission to engage in provided we meet certain legal criteria.  That criteria includes things like being a certain age or passing a certain test.  And we must pay a fee.  Licenses are also usually limited in scope and time and must be renewed periodically.

Well, we don’t have to pass a test to get married, even though some might think that’s a grand idea.  And a marriage license doesn’t require renewal.  So what’s the deal here?  How did this “license” suddenly get converted into a “contract?”  And what exactly are we contracting for?

If you search your state’s statutes, you are going to find one that just declares, as a matter of law, that marriage is a civil contract.  Surprise!  Abracadabra!  Make it so!  Poof!

You’re the proud party to a binding contract.

There are other things the law just declares and there are what we call “gap filling” statutes out there for all types of activities.  You’ll see this in particular with things like the Universal Commercial Code.  Once a state adopts these statutory schemes, they “fill in” any missing and essential elements of the legal activity they’re related to, should a party fail to include a term in an agreement, for example.

Now a contract has a certain number of legal elements that must be present in order for it to be valid and enforceable.  And you’ll see this number vary depending on the source.  But basically, the parties entering the contract must be legally able to do so – capacity and competency (age and mental state), there has to be an offer, an acceptance of that offer, consideration given, and mutuality of obligation, and mutuality of agreement.  And with most contracts regarding matters of importance or of a certain value, there must be a writing – a written instrument that fully delineates the terms of the agreement.

One other thing that’s important to mention.  The subject matter of what you are contracting for must be a legal activity.  You can’t walk into court and expect a contract, even if written and properly executed, for the sale of illegal drugs to be upheld and enforced.  Or better yet, just think about trying to enforce a so-called “contract-killing.”  A “hit.”  Lots of luck to you if you think the law is going to help you out there.

And what’s this “mutuality” stuff?

Well, all of the parties to a contract must have duties to exchange; a promise(s) for a promise(s).  A bargained-for exchange.  And all of the parties must understand what those duties are – there must be a “meeting of the minds.”

Contracts are also generally not “unilateral,” where one party agrees to do something for nothing in return.

One of the terms I see as being tricky when it comes to marriage, is “consideration.”  Consideration, in contractual terms, is not being nice, thoughtful, or sympathetic.  It also does not mean that someone has cautiously, deliberately, and for a length of time considered a course of action.  Although one might hope that a couple does this before marriage.

Consideration, in contractual terms, refers to the inducement and value of the promise given in exchange for the return promise.  Consideration must be “adequate” for a contract to be legal and enforceable.  For example, a dollar does not constitute adequate consideration to purchase 100 acres of real estate or a Mercedes automobile – even if the parties agree that it is.  Such a contract is not enforceable.

So just what are the parties to a marriage contract giving each other, of adequate value, to make that contract legal, binding, and enforceable?

The answer to that is a bit nebulous.

Back in the old days, women were regarded as being property.  First, they were the property of their fathers, not the mother, because women couldn’t own property.  So fathers “gave” their daughters away with the inducement or consideration of offering a dowry.  The dowry being property or money.  In exchange, the husband provided the consideration of providing protection and all of the “necessities” the woman would need.

In some cultures, who received the dowry might be reversed.  But women were generally not viewed as valuable as sons, who provided labor, or even as valuable as livestock.  Thus, the prospective husband-to-be was paid to take the daughter and unburden the father.

Later, single women (“feme sole”) did gain some rights, but their legal status upon marriage became “feme covert” (coverture), where their legal rights and obligations were subsumed by those of her husband.  Coverture is the legal fiction that a husband and wife are one person – the husband.   Married women did not have the right to engage in any business as a separate entity until the mid-1800s when their independent legal status was beginning to be recognized in various “Married Women’s Property Acts.”

This history is important to understand the history of divorce laws and how that history can lead to great inequities in modern divorce.  Divorce being the result of “breach” of the marital contract.  And that term is hard to understand or even apply in this context too.

But, for the moment, let’s jump back to consideration.

Just what are the parties in today’s modern world exchanging of value to satisfy the element of consideration?  For young couples starting out it must not be property or money because neither party has these things.  It can’t be an exchange for sex because that’s prostitution and that would be an illegal subject matter.  I don’t think it could be the wedding ring.  Is there really enough value in gold and diamonds being offered in exchange for the rest of another person’s life – to cohabitate, to take care of one another, to birth and raise children, to support mutual careers, and to build joint wealth?  I don’t think so.

Is just the fuzzy, hazy, ambiguous, amorphous, shadowy, vague concept of “mutual beneficial commitment” sufficient consideration to support a marriage contract?

I’m truly a bit confused here.

If there isn’t adequate consideration to support the contract in the first place, then how can you determine contractual damages if a marriage falls apart.  Should such a contract be null and void from the beginning?

In later years, people may have acquired more property and wealth to serve as consideration, but is that what a marriage is reduced to – materialistic value – a dollar sign and zeros.  That sounds like prostitution again.  Where does love, respect, and devotion fit in?  Can those even be quantified?

You see this whole idea of a marriage contract is a bit sketchy, and some might think it was just pulled out of somebody’s ass.  Or collectively, the State’s ass.

While a “marriage contract” is blurry on the element of consideration, it also doesn’t clearly indicate what constitutes a breach, unless you see outright abandonment.  These contracts generally don’t include a liquidated damages clause, which defines the penalty to be paid for a breach.  This penalty, if not agreed upon beforehand in a pre-nuptial agreement, will be decided in court by decree or by mutual agreement of the separating parties – essentially another contract, which a court must approve.

And it will be in our next installment that we will talk more about dissolution.

And about who gets what.  And about what the parties’ expectations should be.  And how young folks might want to examine the end point before signing on to the beginning of a nebulous agreement, till death do you part . . .

Until another day, I bid you adieu.


Photo: Clearly a firework that’s exploding.  A one-second timed exposure with the camera pointed at the sky and with hope it would catch something.  And it did 🙂  I think we all like to think of love, and maybe even marriage, as wonderful as fireworks going off when we kiss for the first time.  But like this picture, what we capture may have more of an element of chance to it.

* All of the disclaimers I gave in Part 1 of this series apply.  With the additional disclaimer that what I am elucidating is not legal advice.  I am not your attorney, and we have not entered a contract for legal services.  Please consult with a licensed, and competent, attorney should you need legal advice.



17 thoughts on “To Have and to Hold – Part 2 – Contract, What Contract?”

  1. Excellent. This is why I will not marry again. It’s BS. If you care/love another, just be together. Making it legal is a joke unless if you have kids, which I am glad I do not. I like some kids and most are so self absorbed it is ridiculous. Thanks for sharing the facts.

    Liked by 1 person

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