Agreement as Contract
Marriage is interpreted as both a status and a contract. In the English Common Law tradition from which our legal doctrines and concepts have developed, a marriage was a contract based upon a voluntary private agreement by a man and a woman to become husband and wife. Today, the underlying concept that marriage is a legal contract still remains but due to changes in society, the legal obligations are not necessarily the same. Marriage has traditionally been defined as the legal status, condition, or relationship that results from a contract by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of husband and wife in law for life, or until the legal termination of the relationship.
Marriage is a legally sanctioned contract between a man and a woman. Entering into a marriage contract changes the legal status of both parties, giving the husband and the wife new rights and obligations.
The laws of marriage and divorce are analogous to the laws of contracts. For example, commit a fault ground for divorce such as adultery, physical cruelty, habitual drunkenness, etc., then the contract of marriage has been breached and can be terminated in a divorce action; or, if there was lack of capacity (in some cases fraud or misrepresentation) entering into marriage, then the contract of marriage is void (or voidable) and can be annulled in an annulment action. For a “no-fault” divorce based upon the parties living separately for a period of time, the marriage can be terminated for “want of” or “lack of” consideration, i.e., there no longer exists the exchange of the reciprocal rights, duties and responsibilities between the parties.
Contracts can be modified by other contracts. Likewise, marital agreements – contracts, can be used to modify the “marriage contract.” For example, premarital agreements made in contemplation of marriage; marital agreements made while still living together but not in contemplation of separation or divorce; separation agreements made in contemplation of or after separation; settlement agreements made to settle marital litigation; and reconciliation agreements made in contemplation of resuming the marital relationship after separation or during litigation.
Therefore, to write an enforceable agreement, basic contract law as well as the marital status of the parties should be addressed. The elements for drafting a marital agreement should include: (1) clear identification of the parties and the purpose to change marital status; (2) consideration – give and take on both sides; (3) full and fair disclosure of income, assets and liabilities (usually by attaching financial declarations); (4) clearly expressed terms and changes in status; and (5) free and voluntary execution by the parties.
In reviewing and approving an agreement, the family court, as a court of equity and the protector of children, will also consider whether it is fair and equitable to the parties under the circumstances, whether the parties entered into it freely and voluntarily and whether it is in the best interests of the children (if any) before making it an order of the court.