Contract Marriage: The Way Forward or Dead End?

Abstract

This essay aims to analyse contractarian theories of marriage and considers how advisable it is that the law concerning marriage should be reformed to make it conform more closely to contractarian principles. The theories in question are at their most articulate in the United States of America, as one would expect, but the problems raised are relevant to the United Kingdom. For although no one would argue that the version of marriage established in the United Kingdom is contractarian, the contract model is colonizing more and more areas of contemporary life and marriage may not be immune. Indeed, the current policy debates surrounding the Family Law Bill's provisions on divorce have implications for the nature of marital obligations. In arguing against the contract theorists of marriage, I start with some historical background before outlining the (admittedly powerful) arguments that they can and do deploy. I then maintain that the proponents of contract are incapable of addressing the fundamental problem of the imbalance of power in contemporary marriage and rely on a conceptualization of the public/ private divide inimical to the very freedom and equality that contractarian ideas claim to advance.