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14 February 2011updated 09 Dec 2012 11:44pm

Making marriage harder

A St Valentine’s Day wish to take the law out of romance.

By David Allen Green

There is nothing wrong with wedding ceremonies, for those who want to do that sort of thing. Ceremonies could be religious or non-religious, and be between mixed-sex or same-sex couples. Indeed, one could have ceremonies involving anyone who was up for a bit of fun.

Nor is there anything wrong with wedding receptions. The key to a successful wedding reception is that the total value of the gifts on the wedding list should exceed the cost of the reception. And for romantics, the wedding reception is a perfect opportunity to meet others with a similar affliction in a comfortable and non-threatening environment.

But there is no need for weddings to have any legal consequences. Many who undergo weddings, for the best of reasons, do not seem to realise the dire legal effects of their actions. For a wedding means that a marriage contract has been entered into.

Every first-year law student used to know that marriage is a form of contract. Indeed, the celebrated case of Bardell v Pickwick reminds us that a legal action could once be brought for breach of a promise to enter such a contract.

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Usually with such onerous contracts, both parties should have separate legal advice. I do not mean advice for a prenuptial agreement; I mean legal advice for both parties on entering the nuptial agreement itself.

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A commercial transaction of comparable value — say a share acquisition or a disposal of assets — would normally be accompanied by lawyerly advice: seeking contractual protections, guarantees, and amounts in escrow. Various adverse outcomes would be discussed with harsh and open realism, and the parties would allocate risks and rights of termination accordingly. And once both parties were properly advised, and had mutually agreed the legal outcomes of various unhappy scenarios, then there would be a cooling-off period of 12 months before the agreement had legal effect.

Indeed, the world would be a far happier place if marriage was harder and divorce easier. There would be far fewer divorce lawyers if there were more marriage lawyers, just as companies that are realistic and well-advised when they negotiate a contract tend not to get bogged down subsequently in messy litigation.

Couples who really want to entrap themselves in a legal relationship, as well as having a marriage ceremony and a nice reception, should be allowed to do so. After all, it does take all sorts.

But one suspects that if the parties were forced to consider the legal consequences of their marriage, fewer would get married. However, those marriages which then did take place would tend to endure happily ever after.

And there’s a romantic thought.

 

David Allen Green is legal correspondent of the New Statesman.