Marriages as Contracts: A Case for Mandating Prenuptial Agreements

Let’s face it, traditional marriage has broken down. Gone are the days when men and women, motivated by the desire to self-propagate and the harsh economic realities, would dedicate themselves to one another in a lifetime commitment. Now, because of technology, the market and the welfare state, the individual can get by on his or her own. Men don’t need women and women don’t need men.

What had made women need men, traditionally, were hard labor duties that created income. Agriculture, and later mining and industry, would involve literal back-breaking work that required upper body strength which naturally fitted men (on average). Now, the most back breaking aspect of a typical job is sitting. Work became more attractive and the traditional sex-barriers broke down.

What had made men need women, traditionally, were homemaking duties: cooking, cleaning, and craft-making. But technology has dramatically reduced the numbers of hours dedicated to homemaking. The refrigerator, dishwasher, vacuum, iron, stove, and many other household products have made once exhausting tasks into pesky chores. In the market, mass-production has turned knitting from a practical necessity into a hobby. The homemaking profession has been automated, reducing marriages’ practical need for men. While marriage itself is not as necessary as it once was, neither men nor women got particularly good deals under marriage.

In the pre-marriage phase, women have a difficult time finding someone for a long-term commitment. Women can choose men through the courtship process. However, once they make their choice, and especially when they get pregnant, they’re largely. Women could only hope that the men they choose are as charming, courteous, agreeable, and generous as they were on their first date.

Enough cocktail conversations would lead a person to find out about the De Beers mining company’s advertising campaign to manufacture the widespread tradition of the diamond engagement ring in the 1900s. Yet the diamond ring, however wasteful, serves as a signal to the female spouse that the chosen male won’t just leave her for the next woman once he propagates his genes. This is the pre-contractual method of establishing trust. Yet while a diamond can signal a party’s commitment, businesses have found that legally binding contracts work better. So couple can save their money buying a rock and spend it on a contract lawyer instead.

This contract arrangement wouldn’t just benefit women seeking commitment, but also men who want a better exit. Under the current state of affairs, men don’t get a good deal in the post-marriage divorce stage, particularly in child custody and alimony awards. The state of affairs may benefit lawyers, but not necessarily the parents or their children.

Marriage is not only unnecessary, but can be harmful in some respects. Women are at risk of bad choices and men are at risk of harmful divorces. So while marriage won’t become necessary, we can at least keep it from being harmful. And this should take the form of requiring all marriages to have a substantive prenuptial agreement, with some terms being mandatory, like child-sharing agreements upon termination.

Why isn’t marriage treated like any voluntary association? We may choose to be a part of companies, clubs, friend groups, without making holy vows, sharing income or assets, or requiring a license from the state. And we may leave these groups without having a judge determine how our assets should be divided and the opportunity cost of joining another association.

It is strange how wild an exception marriage is for many associations. Employers do not interview for positions expected to be held for a lifetime. Leaving a club does not involve dividing the club’s assets. But this is the ordinary course of events for marriages.

Commentators (notably Jordan Peterson) who decry the decline of marriage show that societies composed of predominantly single men tend to be more violent and short-term oriented. And women have played a “civilizing” role for men. Notably, the American frontier became far less violent as women moved out west. And the social science literature supports the assertion that marriage reduces crime.

Yet this is the 21st century, not the wild west. The upper-middle-class bachelor living in a quiet suburb has almost no risk of criminal behavior, either when he is single or in a relationship. The market and state have been a civilizing, even pacifying, force. If anything, marriage might make the bachelor less committed to his career, and less “productive” from an economic standpoint.

If marriage has become just a preference, with no normative attachment to it, then it should be treated as any other form of voluntary association. Therefore, all relationships should be governed by prenuptial agreements with the state viewing non-contractual marriages the same as it would view non-contractual employment arrangements [-] having no view at all.

But the prenuptial agreements would set the obligations. Maybe they would include provisions allowing for termination if a party gains a certain amount of weight or a party’s income goes below a certain amount. The rules can be as typical or ridiculously as two consenting parties want them to be. But importantly, contracts should reflect each individual’s preferences, rather than society’s or the state’s. We should be explicit about our preferences, not lie to ourselves and others about them.

It would take some time to be accustomed to a contractual relationship with a partner, with starry-eyed contract cynics arguing that love can’t be subject to economic whims (although the state is still plenty involved). Many are understandably put off by Albert Einstein’s imposition of a marriage contract onto his wife, which is often described as cruel and misogynistic. Even Charles Darwin’s list of pros and cons of marriage appears bizarre, because how strange is it to carefully consider a major life decision?

While on the surface, this appears to bring elements of the market into marriage, from my perspective, it actually gives marriages more meaning. Two, or however many, consenting parties can set the terms of their marriage as they are comfortable with, with no social or legal obligations being imposed on the two. Couples would need to answer the same questions which commercial entities ask. These include questions on mutual obligation, termination, and penalties. They are under no need to make any sort of arrangements, but choose to do so out of their love (making the contract a product of their love).

A marriage can be temporary, commuter, open, or even include more than two parties. It may also be a lifelong commitment between two people. So long as it is the couple’s (or throuple’s) choice. And because marriage is contractual, if a party decides that a marriage arrangement does not fit them well, that party is free to find some other arrangement or another person to have that sense of fulfillment.

With marriages being contractual, the initial interview and final quitting stage have much less pressure. At the outset, parties can be expected to list their priorities and sign the dotted line to expect their partner to meet their own obligations. And if it does not work out, that’s OK too. Just follow the letter of the contract, have a court assign the penalties and sanctions if applicable, and make arrangements for the next qualified applicant.

Critics of a more contractual approach should offer an alternative. Especially since marriage is not coming back. The Bush Administration’s marriage initiatives funded several programs which attempted to salvage and revive marriage. All have failed. This is not a good sign for more traditional conservatives, who hope that enough preaching about the values of the nuclear family will bring back the 1950s. Technology, women’s rights, and economic independence have put traditional marriages on life support.

Yet contractual marriages are not an innovation. For thousands of years, societies have frequently relied on some form of marriage contract which may use a dowry or bride price (based on the relative market on). However, these contracts were often made at the level of the family rather than the individual. Mandatory prenuptial agreements may be viewed as the liberalization of marriage.

We should not force anyone to be “stuck” in a marriage, but let individuals be fulfilled through marriage. Enforced monogamy may have been practical for societies for some time, but we are past that time. Now, we can respect the preferences and arrangements of consenting parties without the need to impose our conception of what a relationship should be. We can view marriage not as an obligation to society, but as a way individuals can achieve personal fulfillment. If there is any hope to save the crumbling institution of marriage, it is through choice and freedom.


Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store