Abstract
Is marriage status or contract? The two legal forms stand in contemporary legal thought as ideal-typical opposites, the two poles of a gradient or spectrum along which marriage moves. Thus, at least five contemporary family law casebooks pose the question whether marriage is status or contract, and then supplant that question by others that render it some mix of both, typically through the question of the enforceability of an antenuptial contract. Thus marriage is status, but with elements of contract. Depending on how many elements of contract we add, marriage moves down the spectrum towards contract. But everyone tacitly agrees that it can never go all the way, because some aspects of marriage are ineradicably different from ordinary contracts. It is status plus some fragmentary elements of contract …
Halley, Janet E, Behind the Law of Marriage (I): From Status/Contract to the Marriage System (2010) 6 Unbound 1 (2010).
First posted 2018-10-21 08:06:44
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