Contractual Families

At its heart, marriage is a contractual relationship, but it is very different from most other contractual relationships. “While marriage is a civil contract and not a sacrament, the law regards it with a sanctity which is not attributed to any other kind of contract; on the theory that the public has a direct interest in it as an institution of transcendent importance to social welfare.” Fornshill v. Murray, 1 Bland 479, 18 Am.Dec. 344.

A marriage contract is very different from other contracts, both in how it is created, and in how it is treated by the courts. For one thing, the idea of consideration (something of value that is included in a contract, which is also a requirement for a contract to be valid) is elusive, and does not even necessarily apply. [Ed. Tell me about it!]  Second, the state has a definite role in overseeing the marriage contract. Generally, the courts only deal with a contract when there is a problem with someone performing the contract (or not). Marriage, however, continuously impacts many different aspects of a person’s life, such as taxes, property ownership, and even immigration.

It is extremely difficult to replicate the benefits of a marriage contract in other contractual forms.  When a person tries to make a contract with another person to determine property rights in a marriage-like way (like a cohabitation agreement), several pitfalls arise. First, as mentioned above, consideration is a crucial element of contract formation. However, when the consideration would be sexual relations, (called a meretricious relationship), the contract will not be valid because of public policy reasons (it looks like prostitution). When the consideration is household services (i.e., X shares part of her income with Y in exchange for Y’s cleaning X and Y’s home), courts are hesitant to accept the contract because it looks like a common-law marriage, and most states have abolished that. The more straight-forward way to draft a valid cohabitation agreement is to include financial contributions from the parties, but that might not be applicable when one of the parties does not earn money. Also, when states have determined a way to find cohabitation agreements valid, they generally rely on strategies that apply to two unmarried people; agreements covering multiple people might not apply.

Cohabitation agreements are invaluable, if not for legal protections, then for the process of determining what partners’ roles and responsibilities are in a relationship. However, if you want to create a document that will protect partners’ financial interests in a manner similar to that of a marriage, then there are other arrangements that would be more effective.

All edits are by very helpful partner.

Disclaimer: Nothing in this post is intended as legal advice or to create an attorney-client relationship. If you have any legal concerns, please contact an attorney qualified to practice law in your state or district.


Ben Schenker