Marriage Impossible: The Problems with Contracts for Marriage

Four years after splitting from actress Nicole Kidman, Tom Cruise supposedly approached several actresses with an offer for a five-year marriage contract.  According to the Hollywood rumor, actresses including Sofia Vergara, Scarlett Johansson, and Katie Holmes were all approached with an offer to marry Cruise and enter into a marriage contract with benefits for both parties.  In November 2006, Katie Holmes married the man who has been considered the world’s most famous actor.  In exchange for marrying Cruise, Holmes supposedly received a career boost and a substantial chunk of change—$3 million per year of marriage, with a $50 million lump sum at the end of the fifth year, and a $10 million bonus for offspring produced.   For Tom, the marriage contract purportedly provided him with a child and rehabilitation of his increasingly eccentric public image.  This past summer, Holmes filed for a divorce from Cruise, causing the rumored story to resurface with a vengeance.  The crux of the “TomKat” divorce scandal seems to be the supposed marriage contract, which raises major questions about where the American view of marriage is headed, regardless of the amount of confidence one places in tabloid news.

Ideas of marriage as primarily a contractual relationship began in the late 18th and early 19th centuries.  This “new” doctrine of marriage focused on marriage as a voluntary bargain struck between two parties.  Contrary to earlier views of marriage, the terms of the contract were set by parties, not by God, families, or the community, and were governed by traditional contract law rather than canon laws established by the church.  With changes to the marital relationship such as the creation of no-fault divorce, increased property rights for women, and the state as the governing body over marriages, the contractual view of marriage has become even more prominent.  While there is certainly a legitimate basis for comparing a marital relationship to a contractual one, there are limits to the application of contract theory in marriage law.

Primarily, requirements to enter a contract and a marriage differ.  Similar to any other contract, a contract to marry requires mutual consent of the parties and mental capacity at the time of entering the contract.  However, most states’ marriage laws impose age restrictions and require solemnization by a third party such as a magistrate or an ordained minister.  Additionally, there is some basis for the argument that the requisite intent to enter into marriage goes beyond what would be required for a normal contract; parties must freely and voluntarily desire to form a union that is subject to rules in addition to those that govern normal contracts, such as state family law and divorce law.

Additionally, the terms of a marriage contract are often ambiguous, which makes enforcement difficult.  With more liberalized divorce laws, wedding vows that express lifelong commitment to one another no longer carry legal significance beyond the verification of present intent to be married.  Words such as “until death do us part” are recognized under the contract theory of marriage as a solemnization of marriage, but these words are no longer actual terms of the contract.  Generally, if the parties do not have a common understanding of critical terms of the marriage, there is an increased likelihood that marital discord will lead to disruption or dissolution of marriage.

Once dissolution occurs, the lack of clear contractual terms makes it difficult to determine which, if either, party is in breach of the contract.  Equally difficult is the task of determining damages for breach of the marriage contract, particularly in a time when lump sum payments are increasingly more popular than alimony payments and in situations where specific performance is not a viable contract remedy.

The role of marriage as civil status also makes it different than other types of contracts and creates legal concerns beyond those of a mere contract relationship.  After the “contract” portion of marriage is completed—the mutual exchange of promises as consideration and the intent of parties evidenced and affirmed by vows—the contract becomes replaced by a three-party relationship consisting of husband, wife, and the state.  The state then determines most of the terms of the “contract” going forward, and the parties’ ability to redefine or dissolve the relationship hinges on state divorce laws.  The Supreme Court of the United States described this relationship in Maynard v. Hill when comparing the marriage relationship to other contracts: “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.  It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and society, without which there would be neither civilization nor progress.”

The state’s interest in marriage has primarily been related to raising children, and this interest has been frustrated by divorce and similar situations that remove children from the home of their two biological parents.  As Jennifer Morse describes in her article Marriage and the Limits of Contract, when contracts are broken, the state becomes more involved in familial relationships—arguably too involved—in making decisions for family members and forcing certain actions a person may not otherwise take.  The effects of a broken marriage contract are usually more harmful to children than to spouses.  Similarly, the ordinary rhythm of family creates dependence and interdependence, such as spouses supporting one another, parents taking care of children, and adult children caring for elderly parents, which are disrupted by dissolved marriages. Although familial relationships are private, these costs of the broken contract are sometimes borne by society as a whole.  A 2008 Associated Press Study estimated that divorce and out-of-wedlock childbearing costs American taxpayers more than $112 billion each year.

While marriage contracts similar to that of Tom Cruise and Katie Holmes may become more popular in the future and may even offer substantial benefits to both parties, those involved in crafting marriage law jurisprudence should consider the issues a pure contract theory may create in contract enforcement.  Although contract law may provide a framework for entering marriage and for crafting marital obligations and benefits, the reach of contract law is limited when it comes to the complex issues, both legal and social, presented by marital relationships.



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About Leslie Underwood, Former Associate Editor (10 Articles)
Leslie graduated from Campbell Law School in 2013. She is a native of Four Oaks, North Carolina. In 2010, Leslie graduated summa cum laude from North Carolina State University with a Bachelor of Science in Business Management and a minor in Political Science. Leslie participated in numerous moot court competitions, served as a 2012 Graduation Marshal, and worked as a Graduate Assistant in the Campbell Law Career Center. From 2007 to 2010, she was a file clerk at Coats & Bennett, PLLC. In the Summer of 2011, she was an intern at North Carolina Department of the Secretary of State. She was also a summer associate at Smith, Debnam, Narron, Drake, Saintsing & Myers, LLP and externed in the Chambers of the Honorable Linda Stephens at the North Carolina Court of Appeals.
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