Less Status, More Contract: An Economic Analysis of 'Contract Marriage'

Abstract

Economic analysis suggests that the hesitation to contractualize marriage creates a number of inefficiencies. This paper discusses these inefficiencies and then proposes an economic reconceptualization of Continental marriage law. By bringing in more contract into the statutes regulating marriage, we suggest that marriage law can become a more efficient vehicle for maximizing the utility of family members. Learning from the mistakes made across the Atlantic, Continental law can introduce more contract into marriage, thus clearing away many of its religious and idealistic connotations. Economic analysis can help legislators draft statutes that are structured on the basis of incentives. We recommend infusing marriage law with more elements of contract. We propose a new type of contract marriage and illustrate its key economic functions. We discuss the advantages of allowing the marital partners to stipulate the terms and details of their union, the compensation for the dissolution of that union, and so on. We argue that contract marriage can also be used by same-sex couples, given the trend to legalize same-sex marriage in several European jurisdictions. Problems of enforceability are also considered and other related caveats are addressed in the last section of the paper. Our conclusion is that the private ordering of family life is the last and crucial step in the long line of reforms that has swept across European family laws since the early 1970s.

Keywords: Economics of Marriage and Divorce, Contract Marriage, Marriage Law, Same-Sex Marriage, European Marriage Law

JEL Classification: J12, K10, K12