Center for Gender & Sexuality Law
Center for Contract and Economic Organization
The evolution of marriage from a relationship based on status to one that is regulated by contractual norms achieved a milestone of sorts recently with the enactment of the Louisiana Covenant Marriage Act. Under this statute, couples entering marriage can choose to have the termination of their relationship regulated under conventional no-fault divorce rules, or they can voluntarily undertake a greater commitment to their marriage. For couples who select covenant marriage, either party can terminate the relationship on fault grounds, but unilateral termination of the marriage is available only after a substantial waiting period. The principal impact of the statute is to give couples more options than were previously available to structure their marital relationship according to their mutual values and goals.
The Louisiana statute grows out of a widespread dissatisfaction with the current social and legal landscape of marriage and divorce, and a sense that marriage itself is threatened under no-fault divorce law. Although Louisiana lawmakers have embraced a contractual solution to the problem of marital instability, many critics have identified the move from status to contract as the underlying source of the problems with modem divorce law. Among academics, the strongest objection comes from communitarians, who see abolition of fault and the use of "market discourse" in conceptualizing marriage as destructive of the values of caring and commitment that contributed to the stability of traditional marriage. Emblematic of the communitarian concerns is the model of marriage as contract, under which the state is the neutral enforcer of the bargains of autonomous self-interested parties. These critics contend that such a "limited" conception of marriage leaves women vulnerable, harms the interests of children, and undermines social welfare. Their prescription is to resurrect notions of fault, create rules for marital termination that protect the interests of wives and children, and recover (insofar as possible) a world in which marriage is a privileged status, albeit without the patriarchal trappings.
Other critics, using a law and economics methodology, are comfortable with the model of marriage as contract, but argue that no-fault divorce has transformed marriage into an "illusory contract," which provides no remedy for breach of the marriage vows. From this perspective, the availability of unilateral no-fault divorce encourages opportunistic behavior by the husband that destabilizes the relationship and threatens the marital investment of traditional wives. The predictable result is a reduced investment in the risky venture of marriage. Thus, both communitarian and law and economics critics argue that the no-fault regime has caused a decline in the importance of marriage and a loss of its valuable social functions.
Elizabeth S. Scott & Robert E. Scott,
Marriage as Relational Contract,
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/328