Marriage contract

“ Of course, we are sure that women in all countries have in the main submitted gracefully and carried out their part of the marriage contract; but the fact remains that no contract is properly a contract without the freely-given consent of both parties to it. While women have smiled, and even laughed, enjoyed their children and otherwise made the best of their virtual slavery, having as good a time as their spouses permitted, ideal marriage has been more rare than a perfect day in March. ”

“ A marriage contract was necessary to make a marriage legal. In some cases peculiar conditions were made, such as the bride’s being required to wait upon the mother-in-law, or even upon another wife. If it was stipulated that the man should not take a second wife, the woman could secure a divorce in case her husband broke the agreement. ”

“ To sanctify marriage, or to attempt to fetter it by means of a contract, is to thoroughly misconceive its nature, and to attempt in a roundabout way to force the very opposite of its aim. If marriage were a contract, the marriage relation, as already observed, would have to be the result of the contract; but the exact opposite is the case: the marriage relation already exists through love, before that which is called the contract is created by the marriage ceremony, etc. ”

“ No marriage contract should be recognised by the law which is entered into by minors; in this, as in other legal deeds, there should be no capability to contract until the contracting parties are of full age. A marriage is a partnership, and should be so regarded by the law, and it should be the aim of those who are endeavouring to reform marriage, to substitute for the present semi-barbarous laws a scheme which shall be sober, dignified, and practicable, and which shall recognise the vital interest of the community in the union of those who are to be the parents of the next generation. ”

“ Hence the Code allowed a proviso to be inserted in the marriage contract, that the wife should not be seized for her husband’s pre-nuptial debts; but enacted that then he was not responsible for her pre-nuptial debts, and, in any case, that both together were responsible for all debts contracted after marriage. A man might make his wife a settlement by deed of gift, which gave her a life interest in part of his property, and he might reserve to her the right to bequeath it to a favourite child, but she could in no case leave it to her family. ”

“ Many have suggested that marriages be made harder and divorces easier. But how revolutionary would seem a suggestion that marriage contracts be made in advance, conforming to the teachings of experience, providing for maintenance and custody of children and limited by the understanding of the parties; that those who, for religious or ethical reasons, wished to enter into a life contract be permitted to do so; that those who wished to enter into a contract to terminate by joint consent or at the option of either party likewise be permitted to do so? ”

“ It is questionable, as a matter of individual right, whether any State into which the parties may have mutually agreed to remove should assume jurisdiction to set aside the marriage contract for any other cause than could be assigned in the State in which the contract was made. Certainly one State should respect the laws of another, as it would have its own laws respected by the other. But the question of jurisdiction and domicile in interstate divorce has perplexed the courts almost endlessly. ”

“ The easier and more numerous the terms on which the marriage contract can be dissolved, the greater, of course, will be the number of divorces sought; but whether it be for one reason or many, once given a gateway from marriage bonds, and none who are desirous of escape will find much trouble in passing through the portals which the law has flung open. ”

“ If any one unnecessarily or arbitrarily should protract the time, and violate the marriage contract, he shall be liable to the penalty which is contained in it, and the contract shall still remain in force. Any woman who has had one or more husbands, shall after the death of those husbands, be permitted to marry any man of proper age who has never been married before, or who has had one or more wives already deceased. ”

“ If there be no marriage contract to the contrary, the husband is the legal administrator of all the property belonging to the married couple, including that of the wife, as well as that which they possessed at marriage as of that subsequently acquired by them in their own right. ”

“ As a rule, the woman dowers the husband with her youth, her beauty, her love—with all she has; and from this contract certainly the husband should never be released, unless the wife has broken the conditions of that contract. Divorces should be granted publicly, precisely as the marriage should be solemnized. Every marriage should be known, and there should be witnesses, to the end that the character of the contract entered into should be understood ”

“ Marriage is considered a civil contract, which may be solemnized before a qualified clergyman of any sect, or a judge, justice of the peace or other magistrate.
A married woman has the same right of buying, selling, owning and controlling any kind of real or personal property as a single woman. She has also the fullest right to make any lawful contract without adding her husband as a party. She may sue and be sued as if she were a single woman or a man. ”

“ If marriage be a contract, why is it not governed by the same rules that govern other contracts? A consideration is necessary to the existence of a contract. In marriage, the man offers love for love and hand for hand, but what is the consideration for those personal rights of which he dispossesses her? If a contract, why is there no remedy for its violation either in law or equity, as is the case with other contracts? ”

“ The conditions under which, in different communities, divorce has at different times been permitted, vary with the aspects in which the relation of marriage (q.v.) has been regarded. When marriage has been deemed to be the acquisition by the husband of property in the wife, or when it has been regarded as a mere agreement between persons capable both to form and to dissolve that contract, we find that marriage has been dissoluble at the will of the husband, or by agreement of the husband and wife. ”

“ At common law, marriage as a status had few elements of contract about it. For instance, no other contract merged the legal existence of the parties into one. Other distinctive elements will readily suggest themselves, which rob it of most of its characteristics as a contract, and leave it simply as a status or institution. As such, it is not so much the result of private agreement as of public ordination. In every enlightened government it is pre-eminently the basis of civil institutions, and thus an object of the deepest public concern. In this light, marriage is more than a contract. ”

“ The marriage contract should be recognized in our laws as one which cannot be made and broken so lightly as it now is. It should be annulled only for the most serious offenses. The contrary course now pursued so frequently is most detrimental to morals. Our divorce laws virtually offer a premium for unchastity. ”

“ A marriage contract, as viewed by the law, is only a contract in solemn form between two persons of different sexes, to live together in the state of matrimony until one of them shall die. In this aspect the contract is simply between two persons and binds only two. ”

“ Provided, that no marriage contract in writing has been entered into between the parties; no man while married shall bequeath more than two-thirds of his property away from his wife, nor shall any woman while married be queath more than two-thirds of her property away from her husband. ”

“ The innocent party can revoke the donations or advantages which he or she may have made or promised to the other by the marriage contract, whether they were to have come into effect during the life of the party or after his or her death.
Children less than five years old remain in the mother’s custody. Those over that age shall be handed over to the party who, in the opinion of the judge, is most fitted to educate and care for them.
The husband who may have given cause for divorce must continue to support the wife if she have not sufficient means of her own. ”

“ Introduction.—The law of England regards marriage as a contract, a status and an institution. As a contract it is in its essence an expressed consent on the part of a man and woman, competent to make the contract, to cohabit with each other as husband and wife, and with each other only. ”

“ A widely used model marriage contract limits privileges accorded to men by custom, and traditional interpretations of Islamic law recognize a divorced woman's right to a share in the property that couples acquire during their marriage and to increased alimony. ”

“ Effects of Divorce.—The judgment of divorce completely sets aside the marriage, and both parties are free to marry again. On divorce the innocent party also comes into the immediate enjoyment of all the rights in the estate of the guilty spouse, or the funds settled by the marriage contract, as if the offending party had died at the date of the decree. ”

“ A husband and wife are bound to support each other. When the wife is a minor the husband, if of full age, exercises the functions of a guardian.
A contract made between husband and wife may be cancelled at any time during the marriage by [Pg 108] either party, but without prejudice to the rights of third persons.
Divorce by Mutual Consent.—The husband and wife may effect a divorce by mutual consent. No court procedure is necessary. Just as in giving notice of marriage, the parties consenting to be divorced give notice of such agreement to the registrar, and they are ipso facto divorced. ”

“ Any marriage to be legally binding had to be accompanied by a duly executed and attested marriage-contract, and without this necessary preliminary a woman was not regarded as a wife in the legal sense. ”

“ It is the only declaration of will, the only ground of legitimate marriage, which is not created, but merely consummated at the gifta. [893] Those who are bound by contract are in respect to third parties practically husband and wife. [894] The ground of the husband's title is the betrothal and not the nuptials. Either party can bring action in the courts for breach of the contract. The bridegroom cannot compel the delivery of the bride, but he may sue for the recovery of the weotuma and an additional fine. ”

“ It is only fair under existing economic conditions that at marriage a husband should insure his life in his wife’s interest, and I do not think it would be impossible to bring our legal marriage contract into accordance with modern ideas in that matter. ”

“ Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require. ”

“ Such a contract has nothing in the least to do with the real marriage; on the contrary, it appertains to a time when the marriage has ceased, and regulates in that case the external affairs of the once-married couple. But as long as the marriage continues, it has as little efficacy as there is need for it; for marriage is love in action, and that presupposes complete harmony in all dispositions, and complete community of all interests. ”

“ The law concerning divorce, however, would seem to lack that fairness which characterizes many other regulations of social life. A man might divorce his wife by the payment of a pecuniary consideration; but if a woman undertook the initiative in annulling the marriage contract, she might be condemned to death by drowning. ”

“ As members of society and citizens of the State, all persons should conform to the same civil law, leaving the individual parties free to supplement the civil ceremony with a religious one, according to the rules of the religious society to which they belong.
There is a peculiarity in the marriage contract, that does not enter into any other contract in the ordinary commercial transactions of life. While others may be, it must be between one man and one woman only. The contract does not end with the marriage ceremony ”

“ The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. ”

“ Another peculiarity in connexion with marriage is that an agreement, to the effect that either husband or wife may divorce the other whenever he or she has become averse to continuing as the other’s partner, is acknowledged as a legitimate condition of a matrimonial contract. ”

“ Marriage contracted by persons under puberty shall, nevertheless, be ipso facto made legal if a day after having arrived at the legal age of puberty, the parties continue to live together without bringing a suit to set aside the marriage, or if the female becomes pregnant before the legal age, or before the institution of a suit for annulment.
Persons who are not in the full exercise of their reasoning faculties cannot contract marriage.
The law forbids the marriage of all those who suffer from absolute or relative impotency. ”