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Marriage as a Contract

Lots of relationships, from those that you have with your landlord to those that you have with your doctor, are founded upon contractual agreements.  It may surprise you to learn that marriage, too, is founded upon contractual ideas.  From the famous United States Supreme Court case Maynard v. Hill in 1888, the federal government has considered marriage an institution that is at least in part a contractual relationship, an agreement between two parties.  What are the similarities and differences between marriages and relationships more traditionally viewed as contractual ones, and how does this comparison affect your marriage or family law determination?


Like other types of contractual agreements, marriages, in order to be formed or dissolved, generally require at least some influence from the state or from the court. Additionally, marriage requirements, like contractual requirements, include a requirement for capacity, that is, a requirement of a state of mind in order to enter the agreement, related to age, mental capacity, and any relevant mental conditions.  For both marriages and contracts, the state of mind required is essentially a sufficient understanding of the nature and effect of the act in which the person is engaging as well as the nature of the duties and obligations the agreement will create.


Of course, a marriage contract is different from the type of contract to you may have with a landscaper or for the sale of goods. In a marriage contract, the rights, duties, and obligations of the parties are rested upon the laws of the state in which the marriage takes place. Generally, agreements more traditionally considered to be contracts contained within them the principles of the rights, duties, and obligations. For instance, in a marital agreement, local laws dictate who owns what property. But in a contractual agreement with a car dealership, most of the details of the agreements are contained within its text.  Marriage requirements are also in some ways more stringent requirements than those for other contractual agreements.  For minors, generally consent from a guardian is needed to marry, depending upon the age of the prospective spouse.  But for other types of contracts, minors may be able to legally blind themselves without guardian consent in some circumstances. Additionally, marriage requirements also include provisions prohibiting familial relation between the spouses (incest) or other types of relationships as a matter of public policy.

Why Does It Matter?

You may look at your marriage to your spouse as something extremely distinct from your contract with your boss. But the law likely sees them more similarly than you do. Remembering that your marriage also functions as a legal contractual entity that can be formed or terminated by a court can help you understand the mindset of a judge in your family law case, the holding of a recent case precedents that affects your situation, or the advice you receive from legal counsel.

Are you considering forming or making some changes to your “contract for marriage”? If so, you would likely benefit from some legal advice.  At Schwartz | White, our experienced Boca Raton attorneys can help you navigate marriage and family law as social relationships and as legal contracts. Call 561-391-9943 for a consultation today.

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