The most important aspect of a contract is that one of the parties makes an offer for an arrangement that another party accepts. This is known as the ‘ad idem’ which translates to concurrence of wills (Black 2005, p. 103). There must be evidence that the parties had engaged in conducting an agreement when both parties have met the others requirements. This means that it is only necessary that someone gives the impression of offering or accepting the terms of a contract in the eyes of a sound-minded person, not that they actually did want to form a contract.
Over the last 100 years, marriage has been increasingly viewed as a contract (Jeffery 2006, p. 15). This is particularly so in the United States because of the dominance of lawyers, which has caused a degree of separation of the state from the church. This created the idea of marriage being a legal contract as opposed to a contract with God. Therefore the state has been able to set the basic marriage contract instead of the church.
Marriages are usually formalised at weddings or marriage ceremonies. The ceremony may be officiated either by a religious official, government official or government approved minister. Religious ceremonies must be held separately from the civil ceremony. This is the case in some European countries such as Belgium and the Netherlands, where a civil ceremony must take place before a religious one. In Great Britain however, both religious and civil ceremonies can be held together – the minister at the religious and civil ceremonies can also serve as a government agent to carry out the civil ceremony. However, to avoid any implications that the state is recognising a religious ceremony, both religious and civil ceremonies are said to be taking place simultaneously. For example if the civil element of the religious ceremony is absent, the marriage will not be recognised by the government meaning that although the couple will be married, any break-up will not warrant damages to be paid to either party. Despite a marriage ceremony being carried out by a religious or civil official, most religious customs uphold the idea of the marriage itself being the act of two individuals, either as a form of contract or as an exchange of vows, with the guests acting as witnesses (Marriage in England and Wales, 2008).
Although the idea of a marriage is a religious one, marriages have often been regarded as a financial transaction (Witte 1997, p. 2). This was common particularly during the 19th and early part of the 20th century. Wealthier families often only permitted their children to marry into other wealthy families. This was usually to keep the money within the family and to stop any ‘gold diggers’ from having access to the money. It also allowed closer business connections between the two families. However, marriage in those days was thought of as being for life, and divorce did not occur very often at all. This was generally because the couple knew the idea of divorce was frowned upon and neither party wanted to upset the family.
In my opinion, the main reason for divorce is that people know they can get out of the marriage if they want to. This means they might get married thinking they can always end it if they do not get on with that person. If there were no way to exit a marriage, the couple would be more likely to make the marriage work. In the long run, the couple would be happier than they would if they decided to get divorced, particularly if there are children involved. This is perhaps why there were much fewer divorces in the past because couples knew that divorce was socially unacceptable and generally sought other means to resolve differences.
Once a marriage is contracted, there are often considerable costs in breaking it up and for the individuals to rearrange their lives. There are not only legal costs however, but also psychiatric costs because people have spent time and effort compromising their own thoughts in an attempt to learn to live with someone else (Kammeyer 1987, p. 503). It is generally regarded that married people are wealthier than single people, and the married couple’s wealth will increase significantly the longer the marriage lasts. Children for example make the idea of breaking the marriage contract much more difficult. The children need to be cared and provided for until they reach adulthood so it is often undesirable for a couple to get a divorce if they have children (Rees, 2008).
The way in which divorce differs from the breach of a regular contract is that there are so many different factors affecting a marriage. A contract is simply an exchange of promises, between two parties to perform or refrain from actions. (Hill, 2002 p. 155) In a marriage, both parties might refrain from adultery but still be unhappy together. They might, for example have clashing personalities which they only discovered after marriage. According to contract theory, marriage contracts exist because marriage is a joint project in which mutual obligations are carried out over a long period of time (Fineman, 2006 p. 60). This means that once the marriage has begun, there are considerable costs to each party associated with a possible break-up or divorce. Each party will put specialist capital into the marriage, which will be mostly destroyed by the marriage breaking up, often resulting in both parties being less happy afterwards than they were during the marriage.
In conclusion there are a number of different reasons that marriage differs from all other contracts, which have been discussed previously. However, the primary reason for marriages being different from other types of contracts is that a breach can have the elements of restitution, reliance and expectation (Rees, 2008). This is very uncommon in any other type of contract because there are usually only damages to be paid for, either reliance and restitution, or expectation should there be a breach. However, should a marriage break-up because the husband committed adultery, the wife may expect to receive restitution interest so her life will be restored to the way it was before the marriage. Secondly, she might also expect to receive reliance interest, in that she will be compensated for the actions of the husband. Finally she might also expect to receive expectation interest because she thought the marriage would last until death. That is, reliance and restitution damages would put the wife in the same position she was before the marriage, and expectation damages would leave her in the same position as if the marriage had lasted until death. All three types of damages are often claimed when children are involved. Referring to the previous example, the wife would need to be compensated to the position she was in before she got married, but she has children so would need to be compensated as if the marriage had lasted so she can still raise the children the same way they would have otherwise been. This suggests that marriages are treated as a contract should there be a breach. When a marriage contract begins, there are no set terms, only applied terms. Therefore it is implied that both parties will remain faithful even though this is not specifically stated.
References
Beatty, J. (2007) Essentials of Business Law. p.214.
Black, O. (2005) Conceptual Foundations Of Antitrust . p.103.
Fineman, M. and Bernstein, A. (2006) Marriage Proposals, Questioning a Legal Status. p.60, 61.
Finn Track Higher and Further Education (2007) Legal Environment. [online] Available at: http://www.finntrack.com/management_centre/legal_environment.htm [Accessed: 01/09/08].
Hill, K. and Hill, G. (2002) The People's Law Dictionary. p.155.
Jeffery, P. (2006) The Mystery of Christian Marriage. p.15.
Kammeyer, K. (1987) Marriage and family: a foundation for personal decisions. p.503.
McGuire, C. (1989) The Legal Environment of Business. p.221.
Rees, M. (2008) Legal Economics Lecture. 28/08/08.
Shah, P. (2005) Legal Pluralism in Conflict: Coping with Cultural Diversity in Law. p.95.
Wedding Guide UK (n.d.) Marriage in England and Wales. [online] Available at: http://www.weddingguideuk.com/articles/legal/englandwales.asp [Accessed: 31/08/08].
Witte, J. (1997) Sacrament to Contract. p.2.
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