The Marriage Contract: Spouses, Lovers, and the Law

Abstract

This review of Lenore J. Weitzman’s book, The Marriage Contract: Spouses, Lovers, and the Law, discusses this excellent and exhaustive treatise on the inter-relationship of family law and contract law. The result of ten years’ of sociological research on marriage and divorce, Weitzman’s book advertises itself as providing “expert advice on writing a living-together contract for equal partnerships, traditional marriages, remarried parents, homosexual couples, roommates who want to avoid palimony.”

The book provides an incisive, critical analysis of the traditional model of marriage and its regulation by current law. The book’s most significant contribution is its argument that late twentieth-century social realities have rendered anachronistic archaic legal assumptions concerning both married and unmarried couples. In order to remedy the inequities that arise from judicial discretion in the realm of domestic problems, Weitzman suggests that the best method for governing relationships is “intimate marital and non-marital contracts.”

Clearly, Professor Weitzman has seen the future of domestic relations law to be contract law, but it is in the case of intimate contracts that professor Weitzman’s book is most disturbing and frightening. It is unsettling to envision thousands of couples using The Marriage Contract as a kind of fix-it manual for their relationship (not unlike Dacey’s How to Avoid Probate), only to discover, at some later date, that their intimate contract is unenforceable, worthless piece of wishful thinking.

Professor Weitzman, who is a sociologist although not an attorney, has written a legal “how-to” manual replete with sample agreements and contract provisions. He book is dangerous because many readers may skip the legal analysis and proceed straight to the model contracts. Her caveats, however, are grossly inadequate to warn the reader of potential legal pitfalls in the sample agreements. These illustrative draft instruments are fraught with legal peril, particularly to the naïve, the trusting, and the legally illiterate. Professor Weitzman’s book is potentially harmful in that it offers dubious legal advice through official-sounding, jargon-laden, model intimate contracts. As such, these “contracts” are the weakest and least valuable portion of the book.