How Divorce Serves as an Essential Aspect of the Marital Contract

When Delaware adopted laws allowing persons of the same sex to enter civil unions (a precursor to same-sex marriage within the state and other jurisdictions), five same-sex couples immediately filed for a divorce in the Delaware Family Court. There were, in total, 16 divorces of same-sex couples in 2012, so more than a quarter of these divorces began as soon as the law was enacted.

The push for same-sex unions has a long legal and emotional history, even though it seemed to rush upon the United States with a flurry of legislation, culminating in the US Supreme Court’s decision to make same-sex marriage legal in all states in Obergefell v Hodges. But questions and problems surrounding same-sex unions arose from various corners and stages: marriage equity, the right to preside over the affairs and estate of a deceased partner, the right to ownership of property protected by joint ownership, the right to retirement and welfare benefits, and – perhaps most importantly – the right to human dignity. For reasons not explained at the time, not much was said about same-sex couples desiring marriage so that they could divorce.

Most – if not all – the 16 Delaware divorce petitions in 2012 arose from domestic unions or marriages recognised in other authorities, where the couple had since relocated to Delaware and could not obtain a divorce. It is not necessary to look individually at any of these divorces for insight into why the couples married or divorced. Regardless of those details, it is possible to draw one important understanding ‒ often missed by critics and advocates of divorce alike ‒ and that is the importance of divorce to the institution of marriage.

Marriage is a contractual relationship. It is not, however, the initial promises made before an officiant, whether in a religious or secular ceremony. Those promises are often illusory and unenforceable in a legal sense. By way of example, if one party files for divorce the very next day, that party can typically obtain a divorce without financial consequences unless the couple made specific legal agreements before marriage (ie, in an antenuptial agreement). Marriage, as a contract, develops over its course. Each party engages in actions and exchanges, large and small, that shape the marital relationship ‒ for example, “you wash the dishes and I will take out the trash” or “you take the children to school and I will wait for the dishwasher repair”. These everyday interactions are micro-contracts involving offer, acceptance, performance or, at times, breach and damage ‒ all of which make up the contract of marriage.

In a marriage where the parties’ promises are made by the couple and kept, trust between them is not broken and their communication remains intact, the success over time “until death do us part” can be safely predicted because the couple are able to continually make the small agreements day-to-day that are necessary to form the contractual basis of their marriage. But every marriage undergoes small breaches – failing to follow through on small obligations or more significant issues such as infidelity, financial mismanagement, or abuse – and, as these damages to the marriage contract accumulate over time, they often lead to a dissolution of the trust and the concomitant communication necessary between marriage partners. Such breakdowns are the primary causes of divorce, even though society and media focus on the secondary causes of human behaviour. While issues such as disagreements over finances or infidelity often dominate discussions about why marriages fail, therapists and counsellors consistently point to the inability to communicate and the loss of mutual trust as the underlying cause.

To understand marriage (and divorce) as a contract further, it is worth looking at contract law and its theory of damages, which identifies three primary forms: restitution, reliance, and expectancy. Restitution aims to return the injured party to the position they were in before the contract. Reliance damages go further, compensating for losses arising from the breach. Expectancy damages, the most comprehensive, seek to provide the injured party with the benefit they anticipated from the contract. These principles can be analogously applied to divorce settlements.

Applying this theory of contract damages to remedies in divorce, the commentators on divorce law note, by analogy, that – for short-term marriages – restitution is often sufficient. Each party may leave with what they brought into the relationship, and financial entanglements are minimal. For longer-term marriages, however, reliance and expectancy damages come into play. A spouse who gave up a career to care for children, for example, may be entitled to receive alimony as well as child support from the other party to account for the reliance on the marriage’s promises. In the longest marriages, courts often aim to provide the economically disadvantaged spouse with a share of the marital estate and future income to such an extent that they receive something closer to the “benefit of the bargain” ‒ a standard concept in contract law.

This concept of contractual damage in a divorce is connected to this idea that could be described as a “phantom” marriage. Unlike other areas of the law, where specific monetary awards are sufficient to award damages, the remedies of divorce – generally described earlier as restitution, reliance and expectancy ‒ are often tied up in long-term obligations of dividing property over time, paying support and, especially as related to children, telling each party what they have to do and where they have to be at a given point in date and time. As such, the remedies in marital dissolution orders and agreements are the embodiment of substitute contracts to ensure that the responsibilities and obligations of the actual marriage do not vanish at the couple’s dissolution.

Society cares so deeply about marriage as an institution, such that it compels formerly married parties to remain in a phantom marriage until the practical and economic ties of the relationship of that phantom marriage are finished. Divorce laws and the courts that enforce them substitute in the place of the micro-contracts of marriage a set of new, final (or at least penultimate) arrangements between the parties. These agreements often ask or require individuals to accept terms they might otherwise reject, ensuring that neither party can simply abandon the other without consequence.

Returning to the problem faced formerly by same-sex couples, they did not have this remedy, and first had to seek marriage equality so that they could receive the benefits of divorce equality. Why divorce equality was not much voiced in the promotion of same-sex unions and marriage may have been political, but it may also have been due to society’s failure to recognise divorce as a public good. After all, “why would anyone want to get married just so that they could get divorced?” is an easy question that fails to recognise the public need for divorce laws.

Making divorce the perceived enemy of marriage, instead of its companion, is also to blame for allowing the patricidal-/matricidal-like behaviour that is commonly associated with divorce litigation. Cue here society’s and media’s lampooning or deriding divorce as in the film The War of the Roses. Making divorce the bogeyman for a failed marriage creates a pattern of letting the parties to the divorce off the hook when they could have obtained a suitable outcome had they been given the proper guidance from their counsellors, both legal and otherwise.

Even – and especially – in cases of particularly contentious divorces, lawyers serve as a substitute for the trust and communication that have broken down between the parties. While the divorcing spouses may no longer be able to negotiate directly due to mistrust or conflict, their attorneys function as intermediaries. By channelling their clients’ needs and expectations through professional dialogue, lawyers can establish a framework for resolution. This process relies on trust and communication between the attorneys, which effectively replaces the trust and communication that no longer exists between the parties. When attorneys collaborate effectively, they create an environment where their clients can achieve a fair and sustainable outcome. However, when adversarial tactics dominate, the process can exacerbate conflicts, prolonging the resolution and increasing the emotional and financial toll on the parties.

Ultimately, when the parties and their lawyers are not capable of providing a substitute set of contracts for the parties to engage with and even enrich the rest of their phantom marriage, the court of jurisdiction steps in to provide the parties with their last set of contracts. Litigants may view the court’s actions as a form of public taking– ie, “the court is telling me what to do/what I can keep/what I am to receive”. But, really, the court is giving the parties what they cannot do for themselves because they presently lack the ability to form any new contracts and are without the necessary trust and communication required to do so. In time, many formerly married couples do learn a new basis of trust and communication that allows them to separate themselves from the authority of the court.

The importance of divorce law becomes apparent when considering its role in maintaining societal stability. Without fair and enforceable divorce laws, individuals might avoid marriage altogether, fearing the potential consequences of a contentious break-up. This fear of marriage is in part becoming true as young people hesitate to marry, fearing the possibility of a difficult and painful divorce. They fail to realise that a long and healthy union ‒ particularly in a society such as the USA, which may not have the strong social safety net of other Western countries ‒ is unsustainable without remedies if that relationship ends. It calls to mind two famous Hollywood actors who have maintained a long relationship and also famously without marriage ‒ the difference being that each of these individuals is independently wealthy from one another and can maintain their relationship free from economic entanglements and solely on the bonds of human love and affection.

Divorce should not be viewed as the enemy of marriage, but as its necessary counterpart. By providing a pathway for resolving irreconcilable differences, divorce laws ensure that marriage remains a viable and respected institution. Without the option of divorce, marriage could become a trap rather than a partnership, discouraging individuals from entering into it or causing them to stay in harmful relationships. Divorce law, when applied with fairness and compassion, offers couples a way to untangle their lives while preserving their dignity and protecting their interests.

The societal importance of divorce lies in its role as a corrective mechanism. It allows individuals to move forwards, it allows families to be restructured on new contractual terms, and it permits resources to be redistributed in a way that reflects the realities of a dissolved marriage. Rather than undermining marriage, divorce laws strengthen it by ensuring that it remains a commitment undertaken with care and respect. In this way, divorce serves not as a failure but as an essential aspect of the marital contract, providing a framework for resolution when the relationship can no longer fulfil its intended purpose.