Furthermore, the course of lives and relationships may be so difficult to predict that
contracts entered into ex ante may not fairly and justly resolve what occurs ex post. In
addition, in a regime of contract, those in a weaker bargaining position, traditionally
women, will likely negotiate less favorable terms for themselves that will lead to
inequality both in the course of the relationship and also when and if it ends.
And in this regime, even those who negotiate unfavorable contracts may be the
lucky ones compared to those who negotiate no contracts. For some, this will be because
they cannot afford a lawyer to negotiate a contract; for others, this will be because the
motivation to express one’s love publicly, which many would say is their motivation to
enter marriage, would not similarly impel them to enter into a contract with their partner.
If and when these relationships end, the partners would therefore have no contract claims
against one another. Existing, albeit imperfect, status-based protections that are currently
available to those divorcing, such as the right to equitable distribution of property and
alimony, would be nonexistent in such a regime. This would particularly hurt those who
devote more energy and care to the relationship rather than to financial pursuits—likely
women, since they would have no automatic claim to income earned by their partners
through the joint efforts of the family.
6
See Goodridge v. Dep’t of Pub. Health (2003) (“Civil marriage is at once a deeply
personal commitment to another human being and a highly public celebration of the
ideals of mutuality, companionship, intimacy, fidelity, and family. ‘It is an association
that promotes a way of life, not causes; a harmony in living, not political faiths; a
bilateral loyalty, not commercial or social projects?’” (quoting Griswold v. Connecticut
(1965)).
7
It might be argued, however, that although some individuals who enter into conjugal
relationships may fare worse in the event of a break-up if civil marriage was eliminated,
many other individuals would fare better because, in the absence of such recognition
from the state, they would cease to enter into conjugal relationships. And certainly
Fineman and other commentators have suggested that most women would fare better if
they avoided entering into marriage or marriage-like relationships with men altogether.
Whether or not this is the case, however, my strong hunch is that ending civil recognition
will have little effect on the numbers of people who enter into conjugal relationships –
Law School User
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8/23/2005
Convention