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After MarriageRethinking Marital Relationships$
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Elizabeth Brake

Print publication date: 2016

Print ISBN-13: 9780190205072

Published to Oxford Scholarship Online: October 2015

DOI: 10.1093/acprof:oso/9780190205072.001.0001

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The Limitations of Contract

The Limitations of Contract

Regulating Personal Relationships in a Marriage-Free State

Chapter:
(p.51) 3 The Limitations of Contract
Source:
After Marriage
Author(s):

Clare Chambers

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780190205072.003.0004

Many theorists defend enforceable relationship contracts, arguing that they should be available alongside state-recognized marriage or even that they are the best sort of legal regulation to replace marriage. This latter question is the subject of this chapter, which contrasts contract and directive models of regulation, and notes that contract appears to be more compatible with liberty. However, this appearance is illusory since contracts can undermine liberty, directives can enhance liberty, and even a contract regime requires default directives. Moreover, there are various problems with the enforcement of relationship contracts. Specific performance is rarely appropriate in the relationship context. The alternative, fault-based compensatory alimony, risks causing injustice to vulnerable parties. Relational contract theory attempts to deal with some of these problems but has intrinsic limitations. The chapter concludes that contract is not the best replacement for marriage, advocating instead a system of piecemeal directives with limited possibilities for contractual deviation.

Keywords:   marriage, contract, directive, regulation, relationships, liberty, equality, feminism, civil union, partnership

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