For the sake of argument

Why not a written marriage contract?

H. L. CARTWRIGHT ASKS August 15 1959
For the sake of argument

Why not a written marriage contract?

H. L. CARTWRIGHT ASKS August 15 1959

Why not a written marriage contract?

For the sake of argument


When I buy a car I am careful to set out the terms in writing, e.g. a thousand dollars and my old car as a down payment and thirty dol lars a month for the rest of my life. If I buy a ton of hay there is an implied term that it will be suitable for the purpose for which it is sold, such as cattle feed, and the law implies an agreement that I will pay for it within a reasonable time. A contract of employment will provide that the servant will work for the master. his hours will be given, his sick leave, pay. pen sions. holidays and so on. En all these contracts there are many terms which the law will imply if the parties forget to set them out. With regard to the sale of goods these implied terms have now been codified and set out in the Sale of Goods Act, and on a sale of land in the Vendors and Purchasers Act.

Few enforceable terms

Yet when it comes to marriage. the most important contract in our lives, the law implies very few terms. There is a duty imposed on the husband to provide food. cloth ing and shelter. the hare necessities of life, for his wife. if he is able to do so. and the contract may he terminated if either one has sexual intercourse with another. It is a prerequisite that the parties must be capable of sexual intercourse with each other. but apart from these three things there are no terms that are enforceable. The re stilt is that each couple must work out its own contract and when that happens the stronger party very frequently imposes unreasonable terms upon the weaker one. By stronger I do not necessarily mean the man. We have all seen a big hulking man led around by the nose by a small vital woman. Some times this is for the man's good hut it isn't necessarily so.

Since each couple must make its own contract we often find that the two people have two entirely dif ferent views of the contract they are entering. The man may have

intended his wife to keep her job while he joined the multitude that loafs and fishes. The wife may have intended to bring her mother to live with them. The man may have intended to keep all his bachelor associates while the wife intended to drag him into her circle of friends. The wife may have every intention of producing children as soon and as frequently as possible while the man may not want to be bothered with the little monsters. Their ideas on a hundred different matters may be in direct oppo sition but they are left to work out all these things for themselves. This may be a good idea for two rea sonable and intelligent people, but where do you find reasonable people?

It would be foolish to expect a couple in the state of mild insanity that precedes marriage to make the rational decisions that should be made about these matters. A ques tionnaire on the application for a marriage license could ask some searching questions, however, and a copy of the answers left with the other party for three days could provide food for thought - per haps second thoughts.

An application for a marriage license. instead of asking questions about your parents. could ask:

Do you expect your wife to work after your marriage? If she works do you expect her to contribute to the housekeeping costs?

Will any relative live with you? If so. will the situation be ter minable if your spouse desires it?

Do you believe your spouse has the right to privacy? Do you have the right to open arid read your spoi~ :~ letters? Do you expect your spouse to give up any friends to whom you object? Is it ever permksihle to strike your spouse? Do you expect your spouse to change and conform to your re q uirements?

Do you

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For the sake of argument

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accept the obligation to treat your spouse's relatives with courtesy?

Do you expect to live together?

If your husband finds employment in another town will you go with him?

Do you intend to have children?

Whose responsibility is the care and discipline of children?

These questions could be improved by any competent psychologist, but a good set of questions would not only reveal unsuspected aspects to the other party but might even start both parties thinking of their problems and provide a frame of reference for the future.

Marriage, as generally understood in our society, although subject to infinite exceptions, implies that the parties will live together, that the husband will provide the main income, that the wife will look after the house and prepare meals, that they will have sexual intercourse and raise a family, that each will give the other kindness, affection and help, and that each will place the well-being and interests of the spouse ahead of that of third parties.

The vagaries of marriage

This is a conventional picture of a marriage. But what does the law say about it? If the husband refuses to live with the wife without just cause the law will compel him to support her within his means, but no other remedy exists in outlaw for the most flagrant desertion. The parties do not have to live together and refusal to do so is not subject to any sanction. If the wife chooses to leave the husband there is nothing whatever he can do about it except withhold support.

The husband has a statutory duty to support the wife and children within the limits of his means but if he decides not to work and owns no property she can do nothing. If he has some means he can be brought to court and ordered to pay but the only sanction for such order is jail and this automatically deprives the family of his wages. The husband is in an even worse case if his wife fails to keep house or does so in a sloppy or inefficient manner. There is simply nothing he can do in that case, no sanctions he can invoke and no possibility of renouncing the marriage tie on that ground.

From the fact that a marriage can be annulled for impotence, we must infer that potency is a prerequisite to a valid marriage. In law potency means ability to have sexual intercourse and does not necessarily involve the ability to conceive and bear children. Two people may be impotent toward each other but normal toward the rest of the world. From all this we can infer the law regards sexual activity as basic to the marriage but what can either do if sexual intercourse is refused by capable persons? The answer is: nothing — absolutely nothing. Then there is the case of the woman who becomes frigid after marriage or the man who becomes impotent. In spite of these sexual matters being basic, neither condition occurring after the marriage gives ground for any remedy.

Children are usually regarded as one of

the ends of marriage but a refusal or frustration of this end by contraception or other means is not regarded by the law as a breach of the contract. Again nothing can be done in such circumstances.

Many people. John Milton among them, have argued that kindness. alTection and tolerance are even more basic to the marriage tie than sexual activity. What does the law say? Kindness is unknown as a legal term, although cruelty has some place. Affection and tolerance are likewise unknown, and nagging is not subject to any sanction unless it goes to

such an extent that the health of the other person is affected.

When it comes to placing the interest of the spouse first there are many competing claims, some of which are reasonable. The claims of children should receive consideration and the claims of parents or other relatives cannot be disregarded, but we all know cases where these claims have been given unreasonable precedence over the claims of the spouse. To this the law pays no attention. The parties are left to fight it out and the more callous one usually wins while the

more sensitive one submits in quiet desperation.

Any practicing lawyer, social worker or doctor has listened to the complaints of married people and has said to himself: "This person's concept of his or her marital duties and obligations is certainly not mine.” In spite of this, if asked for advice, the lawyer has to say time and time again: “Your complaint seems legitimate but there is nothing whatver you can do about it. It may have been an implied term of your contract but it is a term that cannot be enforced. In any

other branch of the law an implied term may be enforced equally with a specific term but in this branch it cannot."

Judge Louis H. Burke, of the Conciliation Court of Los Angeles, has recently written a book (With This Ring — McGraw Hill) based on a reconciliation agreement he and the social workers of the court have worked out to reconcile couples who have come to their court because of marital difficulties. On reading the terms of this agreement an intelligent layman is likely to turn to his lawyer and say: "But surely these things are al-

ready part of the marriage contract! What is the marriage contract?” If his lawyer knows the subject he will have to say: "I don't know. Each couple must work out its own contract. There are virtually no general terms.”

This reconciliation agreement is a good one but the people to whom it is applied have reached such a stage in their marital difficulties that they may well have passed the point of no return. At the best they would have a grievance to bury in their subconscious minds and such grievances have a tendency to fester.

An ideal situation would be to have each couple proposing marriage go over this reconciliation agreement and express their several views on its terms. For instance the question of having children is mentioned. A frank exchange of views on this point would be of immense value. Presumably pre-marital counseling services would arrange for an exchange of such views, but very few people take advantage of such services and they are not generally available. In any event it is too much to hope that a couple in love will take this sensible preliminary step;

so the legislature should come forward and codify the marriage contract as it has codified the law of the sale of goods. Our marriage act could define the terms of the marriage by saying: "In the absence of an agreement to the contrary the parties shall be deemed to have made the following representations and agreed to the following terms: (a) (b) (c), etc.”

Within broad limits it should be open to the parties to vary their contract by a written memorandum but I suggest that a great deal of needless unhappiness could be avoided if each party knew the terms of this contract. Such a suggestion will be vigorously condemned by a number of people, not because it is intrinsically bad but because of the implication that a serious breach of the terms should leave open the possibility of termination. These people repudiate the suggestion that marriage is a contract. I suggest that in doing so they are confusing the civil and religious aspects of marriage. In the civil aspect it is a contract in law but in its religious aspect it is usually described as a sacrament.

It is my opinion that the religious aspect should not be touched by civil legislation but the civil aspect is severable. The religious aspect is a matter for each church to regulate within the members of its own flock and to enforce these regulations by religious sanctions. The civil aspect, however, has to do with property and the rights of the individual, many of whom are members of no religious group. Just as individuals should not attempt to enforce their views on the religious bodies, those bodies should not attempt to enforce their views on others —as these persons are doing now by insisting that the two aspects be tied together for all purposes.

If we were to draft such implied terms of the marriage contract we could use. as a base, such parts of Judge Burke's reconciliation agreement as lend themselves to legal uses. For instance we could say that both parties entering marriage represent themselves as free of venereal disease. At present such a condition is not a legal ground for complaint. The woman should be taken as representing that she is not pregnant by another man. At present this fact gives the husband no legal remedy.

It could provide that no third person, whether a relative or not, should be introduced or kept in the household without the full consent of both husband and wife. It could provide that the parties agree to have children and afford each other a reasonable degree of sexual intercourse. At present refusal of either is not a legal ground of complaint.

It could provide that the parties will live together if reasonably possible. At present our law gives no remedy for refusal to live together except the wife's right to support on desertion.

Of course there are many things that cannot be laid down by the law but a codification of the basic terms would make some people realize what they were getting into. Too many people learn the hard way by bitter experience with resulting frustration and unhappiness.

Judge Burke deals in his book with couples who have come to such a point in their marriage that they must seek the help of the court. By this time the marriage is either broken or badly damaged. If the parties knew the general terms before they entered this contract some marriages would not occur. In others the parties would make an agreement on points that might well be vital to that particular couple and they could save themselves endless frustration and unhappiness by so doing, ^