Henry Maine famously claimed that societies tend to move from status to contract. ((Maine wrote: “we may say that the movement of progressive societies has hitherto been a movement from Status to Contract.” Henry Summer Maine, Ancient Law, ch. 5 (1861).)) Martha Ertman has been one of a number of prominent family law scholars who have chronicled, and at appropriate occasions critiqued, the way that family law has increasingly allowed enforceable agreements to modify or supplement the status relations of marriage and parenthood. In Marital Contracting in a Post-Windsor World (and also in her wonderful recent book, Love’s Promises (Beacon Press, 2015)), Ertman shows the intricacies of family law agreements: how they include not only status rules, and some default rules subject to variation by express agreement, but also certain agreements and exchanges that are not enforceable through the courts—but may be supported by social conventions and expectations.
Ertman focuses on three elements of the “pair bond exchange” that occurs with couples: money, housework, and sex. As she explains, couples (married and unmarried, opposite-sex and same-sex) make whatever arrangements they wish about these matters while together. These agreements are made in the shadow of social expectations, market forces, and state rules about which agreements are enforceable and what monetary dispositions will be imposed on spouses at divorce. For example, the decision about which partner stays at home to take care of children often reflects gender expectations in society combined with gender discrimination in wages (when the market pays men more than women for the same work, then it will frequently make better sense economically for the husband/male cohabitant to work rather than the wife/female cohabitant, if one of them needs to be at home full-time). Throughout, the article helpfully grounds its conclusions about pair-bond exchanges in a wide range of sociological studies.
As Ertman points out, states are now more likely to enforce premarital and marital agreements that alter economic obligations of partners at divorce, but remain resistant to enforcing agreements that involve compensation for a spouse’s care or work at home (a number of commentators have pointed out the gender effects of enforcing agreements that may benefit the larger wage-earner, usually the husband, but refusing to enforce agreements that compensate home-makers and care-givers, usually the wife). This resistance is displayed even when the case presents sympathetic facts, like a wife acting well above the usual call of spousal duty in exchange (basically) for a return of monetary rights relinquished earlier in a premarital agreement. Additionally, states generally refuse enforcement of spousal agreements that try to create monetary penalties for sexual infidelity, drug use, or other “bad behaviors,” on the grounds that spouses should not be able to create their own private “fault divorce” regime, in contradiction of the state’s public policies prescribing “no fault divorce” or only limited penalties for marital fault.
Ertman speculates that the conventional understanding of marital exchanges may change with the inclusion of same-sex couples in marriage (the article was written before the Supreme Court decision in Obergefell v. Hodges, but at a time when over half the states had already expanded civil marriage to include same-sex couples). Ertman cited studies that showed that same-sex couples were far more likely to share housework and parental duties roughly equally, spend similar amounts of time at work, and have similar salaries. Also, male same-sex partners were far more likely than other couples to have agreements expressly allowing partners to have sex with others. Ertman considers that it may be as likely that (a) the practices and expectations of same-sex couples (especially those raising children) may change as they assimilate to conventional marriage norms as (b) the understanding of marriage changes to reflect the currently-different practices and expectations of same-sex couples.
In the aftermath of the successful movement to gain same-sex couples the right to marry, and at a time when marriage rates generally are declining and the rates of children born outside of marriage is climbing, our society is clearly rethinking the nature and purpose of marriage and the structure of family life. “Marital Contracting in a Post-Windsor World” helps us think more clearly about why we make the agreements we make with our intimate partners, and what follows from the state’s choice to enforce some of these agreements but not others.