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Wed 14 Jan, 2004 01:52 am
Do you think it's time for the act of marriage to be made a legal document ... same as say a hire purchase agreement? or at least a more binding one that the ones we have now.
Eh, isn't marriage a legally sanctioned union between a man and a woman and thus viewed as a contractual agreement subject to legal processes where you live?
The last time I looked, marriage is a legal document.
Are you suggesting manditory prenuptial agreements? Are you concerned with property distribution or do feel that emotional issues should be spelled out and regulated?
Marriage is akin to a contract between two people. Contract law is such that no contract is unbreakable. Breach of contract can occur for various reasons and can be permitted (e. g. there is no penalty) for various reasons, including changed circumstances and prices (if it is a contract for materials), etc.
Marriage works in a similar fashion, in that breach can occur for reasons wherein there is something of a penalty (e. g. the payment of maintenance or a one-time settlement, although that's more often due to the distribution of communal property), or where there is little to no penalty (e. g. no fault divorce or annulments when, for example, the marriage is based on fraud or a law has been broken, such as the law against bigamy).
Marriages, like contracts, cannot be made binding forever and under all conditions (which I think is what the poster was asking about), because there will always be exceptions and, even if one's particular circumstances do not fit under a neat set of exceptions, a person seeking a divorce will (assuming they are adamant in their desire to divorce) do whatever it takes to configure their personal circumstances into the exceptions.
For example, say that the only way that a marriage can end is if it was based on fraud (e. g. one party claimed to be of age when he or she wasn't, or claimed to not be married or something of the sort). Even people who are seeking to put their vows asunder due to something more like irreconcilable differences will strive to configure their circumstances into the idea of premarital fraud, if that's what it takes to have their marriage dissolved. They will not necessarily succeed in this endeavor. And, if they do not, they will very likely live apart and probably engage in what may be referred to as adultery. If that is another possible way of breaching the marriage contract, then that will be the grounds.
Mainly what I'm saying is, by making marriages harder to break, you don't keep a significant number of marriages together in any manner other than name only. Rather, you just make it harder on people who want divorces, and anyone who really wants a divorce will get one anyway.
See, way back before no-fault divorce, when you needed grounds to divorce, people used to either do whatever they could in order to come up with acceptable grounds (which could mean putting their reputations and credit histories on the line), or they would separate for life and live out their lives in different homes, married only by dint of a piece of paper and not because of any mutuality of affection or even living situation.
One (not the only) reason why divorce levels are higher now than they were 60 years ago is mainly due to divorce being easier to obtain. There are definitely people who get divorced these days but who, before no-fault laws, would have remained (very unhappily) married.
What about the common-law marriage, Jes?
I've read, this is still done -seldom- in the USA.
[It was abolished in the Roman Catholic countries by the Council of Trent (1545-63), in England valid until the Lord Hardwicke's Act 1753.]
It's very rare and you have to jump through a lot of hoops for it to be recognized, plus many states no longer permit it.