Nonmarital Contracts

Abstract

Marriage has long been a recognized limit on the right to contract. Wives were once prevented from contracting entirely, and now gender-neutral rules prevent spouses from contracting over matters that are considered integral to the marital relationship. Outside of marriage, then, scholars have generally assumed that individuals experience no similar impediments in exercising their rights to contract. In fact, the right to contract has been widely understood as an effective means of providing unmarried couples access to legal rights they otherwise lack. But there has yet to be any assessment of how such contracts actually fare outside of marriage.

This Article provides that assessment. It considers how the right to contract is construed across intimate relationships. After canvassing the body of cases addressing express contracts in the context of nonmarital relationships, it shows that — contrary to conventional wisdom — courts routinely invalidate express agreements between unmarried couples. In particular, it argues that courts restrict the right to contract outside of marriage in precisely the same ways it is restricted within marriage. Contract doctrine thereby does the work of status, insofar as it limits access to property on the basis of the relationship and refuses to recognize services rendered, like homemaking or child-rearing. Contract, however, functions more expansively and less visibly than status because these restrictions apply beyond marriage and other formal relationships to impact individuals in nonmarital relationships.

This inquiry matters now more than ever. At a time when the number of individuals marrying is remarkably low and there are no ex ante rules regulating the rights of nonmarital couples, it is imperative to analyze whether contract is a viable legal option. This Article shows that the right to contract is limited outside of marriage and, as currently constituted, provides at best an incomplete resolution to the problem of what rights individuals ought to have in a nonmarital relationship.

Keywords: nonmarriage, marriage, contracts, status, property, domestic services, coverture, equality, family, market