Marriage is a status resulting from a civil contract, but very few
people who enter into it know what this contract is. It assumes
certain rights and obligations. What are they? That the wage-earner
will provide. This is enforcible, at least theoretically. What else?
That the parties live in an emotional and mental state designated by
an agreement “to love, honor, and cherish,” and, sometimes, “obey.”
This is obviously unenforcible. (I make this assertion despite the
recent Texas case in which a husband obtained an injunction restraining
his wife’s employer from flirting with her.) The contract continues
for life, subject to termination for causes which depend chiefly
upon the place of residence, actual or acquired. If they live in
South Carolina and stay there, the contract is indissoluble. In New
York the contract may be terminated for adultery, unless the other
party has likewise sought refuge outside of marriage; in Alabama, for
habitual drunkenness; in Nevada, for neglect to provide for one year;
in Kentucky and New Hampshire, for joining a religious sect which
believes marriages unlawful; in New Jersey, for extreme cruelty; in
Wisconsin, if the parties have voluntarily lived separately for five
years; in Massachusetts and a host of other States, for desertion; in
Pennsylvania and Oregon, for personal indignities or conduct rendering
life burdensome; in Vermont, for intolerable severity; in France, if
the parties have other emotional interests; in Denmark, by consent;
in Russia, by request. Of course, in most of these states there are
other grounds, but the result is that either party can bring about a
situation which permits divorce or can make life so intolerable for
the other that he or she consents to it. But these grounds must arise
subsequent to marriage; the agreement cannot be made in advance.
In life the duration of marriage depends upon the desires or consent
of individuals. In law it is perpetual, subject to termination not
by agreement made at the outset, or by later consent, but by court
decree. At the time of entering into marriage people usually know
merely that somehow, somewhere, some time there is a way out if the
situation becomes too strained. Technically, since the contract is
for life, a divorce is granted for a breach. Thus there is an implied
term, as there is in every contract, that relief is granted for a
breach--but what constitutes a breach depends not upon the terms of the
contract or the law of the place where the contract is made but upon
the jurisdiction where relief is sought--a matter of which the parties
ordinarily know nothing when they make the contract. Convention seems
to demand that the parties know not what they do.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account