MARRIAGE AS A STATUS/CONTRACT

Question 1

What is meant by marriage as a status?

Answer 1

The law regards status as meaning: relationship that has a set of legal consequences flowing from it automatically, regardless of the intentions of the parties

Question 2

Case that defines status?

Answer 2

AMPTHILL PEERAGE CASE 1977

Question 3

Definition of status from AMPTHILL PEERAGE CASE 1977

Answer 3

‘The condition of belonging to a class in society to which the law prescribes peculiar rights and duties, capacities and incapacities’

Question 4

What does a status view of marriage suggest?

Answer 4

That the intention of the parties is not important, they are subject to the specific laws of marriage regardless

Question 5

What would a contract view of marriage mean?

Answer 5

That the legal consequences would only stem for the clauses defined in the contract that directly reflect the intentions of the parties

Question 6

What is the view taken by English law?

Answer 6

A mixture of the status and contract

Question 7

Which case did HALE describe the law’s view of marriage as both status and contract?

Answer 7

RADMACHER v GRANTIANO 2010

Question 8

What was said in RADMACHER v GRANTIANO about the contract view of marriage?

Answer 8

‘Marriage is, of course, a contract in the sense that each party must agree to enter into it, and once entered, both are bound by its legal consequences’

Question 9

What 2 points are made about marriage as a status in RADMACHER v GRANTIANO 2010?

Answer 9

1) Parties aren’t entirely free to decide legal com sequences for themselves, must contact into package the law of the land lays down
2) Their marriage also has legal consequences for other people and state

Question 10

An academic who argued for the status view of marriage?

Answer 10

ROB GEORGE 2012

Question 11

What is the argument of Rob George 2012?

Answer 11

• > That marriage is like joining a club
• > Meet entry requirements and you can join, but can’t unilaterally change rules of the club
• > You can chose whether or not to be a member, and campaign to change the rules whether you are a member or not
• > Can’t be a member and refuse to follow current club rules

Question 12

What was the argument of DEWAR & PARKER?

Answer 12

That marriage should be a contractually acquired status

Question 13

What did Dewar & Parker mean by a ‘contractually acquired status’?

Answer 13

Some legal consequences should flow automatically from marriage, but others should stem from individual agreement between parties

Question 14

Is there any evidence that the law accepts the view of contractually acquired marriage status?

Answer 14

YES

• > Increasing encouraging of ADR, avoiding the courts
• > In RADMACHER v GRANTIANO 2010, SC gave legal weight to prenups, suggesting willingness to allow legal consequences to be decided on an individual basis

Question 15

What was the reaction to legal recognition of prenups?

Answer 15

Hysterical. ‘Death knell of marriage’, by allowing couples to define marriage themselves it would lose all meaning

Question 16

Who are the 3 main groups that tend to support contractual over status marriages?

Answer 16

1) Feminists who think it would prevent women becoming trapped in traditional disadvantaged roles
2) Libertarians who think the law has no place in presiding over people’s intimate relationships in such an arbitrary fashion
3) Traditionalists who think current law is too liberal and there should be a choice to contract into stricter marriages

Question 17

What are the main arguments against contractual marriages?

Answer 17

• > Unromantic, accepting marriage isn’t a lifelong commitment
• > Hard for contracts to actually be fair unless parties are completely equal and have had 3rd party advice etc
• > Would have to be updated as they don’t account for future/change
• > Undermines state interests and ability to protect parties during relationship breakdown (HERRING)

Question 18

What does BRINIG argue against contract based marriage?

Answer 18

Marriage represents public support and reinforcement of relationships that enable build up of trust as it rests on a long term commitment

Question 19

What is a covenant marriage?

Answer 19

Very much limits the availability of divorce, available in some US states where several different forms of marriage are avaliable