Abstract:
In the midst of all of the controversy regarding same-sex marriage, the states’ right to regulate marriage was usually accepted as obvious and correct. Legally, marriage is essentially a contractual relationship. Currently, the state sets the default terms governing a few key issues related to marriage, particularly the rules related to property and the rules related to divorce. However, it is better to have the parties to a marriage define the rights, duties, and obligations that govern the marriage contract than to have those issues decided by the state. This Article identifies and evaluates three ways that states can allow couples to choose the terms of their marital contracts: (1) maintaining the status quo in which state regulations are decreasing in number but still control crucial aspects of marriage unless the couple takes the initiative to execute a prenuptial agreement; (2) returning marriage to its religious roots and giving authority to religious institutions to issue marriage certificates; (3) treating every marriage as just a contract, with all terms drafted by the couple and limiting the state’s role to contract enforcement; and (4) empowering couples to choose the terms of the marital contract from a list of state-provided options and retaining the government’s enforcement role. The Article concludes that giving all couples the power to choose the terms of their own marriage contract without requiring them to hire counsel or draft the terms themselves (option 4) best achieves the goal of providing greater information and autonomy for married couples while not unduly burdening the couples or the courts tasked with enforcing marriage contracts.
Baxter, Teri Dobbins, My Marriage, My Contract, My Terms: Reconsidering State Regulation of Marriage after Obergefell (August 4, 2015).
First posted 2015-09-11 05:17:57
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