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Choice of Law and Marriage: A Proposal

19 Pages Posted: 20 Nov 2002 Last revised: 20 Mar 2011

Brian Bix

University of Minnesota Law School

Abstract

In commercial transactions, parties are generally empowered to choose (by a term in their contracts) which state law applies to their agreements. Most commentators believe that such choice of law power increases efficiency, by allowing parties to pick the regulatory regime that best fits the needs of their particular transaction. Would a similar argument justify couples about to be married picking the package of laws that would apply to their marriage (and, should it occur, divorce)? This article considers the question, investigating the way that giving couples such choice of law powers might overcome problems that arise from the current conflict of laws regime. The article also considers the countervailing arguments based on third-party effects, bounded irrationality, and the states' interests in the marital status of their citizens.

Suggested Citation

Bix, Brian, Choice of Law and Marriage: A Proposal. Family Law Quarterly, Vol. 36, pp. 255-271, 2002. Available at SSRN: https://ssrn.com/abstract=325045 or http://dx.doi.org/10.2139/ssrn.325045

Brian Bix (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2505 (Phone)
612-625-2011 (Fax)

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