Flight from obligation.

AuthorDuncan, William C.
PositionDuties to support child and spouse due to legal status - Brigham Young University Symposium on the Future of Families and of Family Law

"It is time, in the West, to defend not so much human rights as human obligations." (1)

  1. STATUS AND CONTRACT

    Wrenched from their context, the concepts in Sir Henry Maine's famous thesis that the movement of the law in progressive societies is from status to contract can provide a way of highlighting important themes in family law. (2)

    The laws related to marriage and family create significant statuses, such as husband and wife or parent and child. More than merely labeling, the law couples the designation with important rights and duties. Thus, it is inherent in the status of a legal parent that he or she may direct the upbringing of his or her child. A parent owes a child a duty of support and may even incur liabilities if the child takes actions which the law considers attributable to a lack of appropriate oversight. Spouses, too, incur obligations because of their legal status. They have duties of support, and the law assumes that they will share property, leave their estate to the surviving spouse, and make medical and other decisions on behalf of one another. To the degree that family law assigns rights and responsibilities--and even, to some degree, identity--to individuals because of who they are (parents, spouses, etc.), it reflects the idea of status.

    The element of status, however, provides only an incomplete account of family law. Being a parent, a husband, or wife does mean obligations inherent in that status, but the status is not inherited or even precisely assigned. There is still some act of volition either direct (as with marriage) or at a remove (as with parenthood) by which the individual assumes the status. Thus, marriage is sometimes described as a civil contract. Indeed, its validity is dependent on its being freely chosen.

    It is clear, however, that marriage and parenthood partake of elements of both status and contract, neither entirely exclusive of the other. Thus, having consented to marry, the terms of the marriage cannot be characterized entirely as freely chosen. One cannot, for instance, simply end the marriage without complying with formal exit requirements (no matter how permissive they have become of late). Even the choice to exit may not end the obligations flowing from the spousal status. For example, one may still have obligations of spousal support. Parenthood is an even more dramatic example as the status of a legal parent can make farreaching demands on individuals far beyond what they might have ever "chosen" in the sense of a dickered bargain.

  2. "MORE THAN A MERE CONTRACT"

    Perhaps it is well to begin with an obligatory reference to Maynard v. Hill. (3) Maynard involved a complicated dispute over a land grant in Oregon Territory. (4) At its most basic, the dispute turned on the validity of a legislative divorce to David Maynard who owned one tract of land. If his ex-wife could establish that the divorce was invalid, their two children (Lydia Maynard died in 1879) might be able to claim an adjoining tract. (5)

    Mr. Maynard had married in Vermont, moved to Ohio with his wife, but after a series of financial problems, left her and their grown children in Ohio and traveled to the Oregon Territory. (6) On the trip he met Catherine Broshears (her husband died on the trail) whom he married a month after his divorce to his previous wife had been granted. (7)

    Acting decades after the divorce and remarriage, the Supreme Court concluded that the legislative divorce was valid. (8) The majority felt legislative power over the validity of marriage was not in much doubt:

    Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution. (9) In this passage, the Court provides more than a mere statement of the dispositive principle (at the end of the first sentence)--that the legislature has the power to grant a divorce--and examples of the uses of that power (in the second sentence). It also offers an explanation of why marriage is a matter of legislative concern. It creates "the most important relation in life" which has "more to do with the morals and civilization of a people than any other institution." (10)

    The question of legislative power to grant a divorce had been addressed in an earlier Supreme Court case in which the Court used divorce as an example of a matter within the competence of the legislature as opposed to a contract the legislatures would be foreclosed from interfering with under the Contracts Clause of Article I, Section 10. (11) In other words, marriage is not like the kinds of contracts "which respect property, or some other object of value." (12) It is a matter of broader social significance, as contrasted with something like a dickered bargain between two private parties. Thus, some discussion of the nature of marriage is not entirely superfluous as it highlights the distinctive nature of marriage that contrasts it with a purchase contract.

    In fact, the Maynard Court opines on this matter at some length. In perhaps the most well-known passage, Justice Stephen Field wrote:

    It is also to be observed that, while marriage is often termed by text writers and in decisions of courts a civil contract ... it is something more than a mere contract. The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. (13) Further, the opinion marshals some other cases to buttress this point. It quotes a decision from the Supreme Court of Maine that stresses the status nature of legal marriage:

    When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which rest not upon their agreement, but upon the general law of the State, statutory or common, which defines and prescribes those rights, duties, and obligations. They are of law, not of contract. It was of contract that the relation should be established, but, being established, the power of the parties as to its extent or duration is at an end. Their rights under it are determined by the will of the sovereign, as evidenced by law. They can neither be modified nor changed by any agreement of parties. It is a relation for life, and the parties cannot terminate it at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other.... It is not, then, a contract within the meaning of the clause of the Constitution which prohibits the impairing the obligation of contracts. It is, rather, a social relation, like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life and the true basis of human progress. (14) Along these same lines, the Court quoted Rhode Island's Supreme Court:

    [M]arriage, in the sense in which it is dealt with by a decree of divorce, is not a contract, but one of the domestic relations. In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and as to these uncontrollable by any contract which they can make. When formed, this relation is no more a contract than "fatherhood" or "sonship" is a contract. (15) The analogy to parenthood is particularly striking here. All of these passages are pithily summed up in F. H. Bradley's admirable phrase: "Marriage is a contract, a contract to pass out of the sphere of contract." (16) It is fair to say that these passages ably frame an understanding of marriage that prevailed for most of this nation's history and which was accepted virtually universally across time and varying cultures preceding the last few decades, an understanding which highlighted the elements of status inherent in legal marriage and family relationships.

  3. CONTRACTUALISM ASCENDANT

    1. Marriage

      In the Dartmouth College case, Chief Justice John Marshall's approval of legislative divorce was not entirely unqualified. (17) In fact, he characterized such acts as "enable[ing] some tribunals, not to...

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