Nonmarital Contracts.

• Author: Antognini, Albertina

Table of Contents Introduction I. Contracts in Families. A. No Right to Contract for Services B. From Coverture to Contract C. Right to Contract in the Nonmarital Literature II. Contracts in Nonmarriage A. Contracts Not Upheld 1. Sex and services 2. Love and affection 3. Presumption of gratuity and lack of exchange 4. Vagueness 5. Remands et al B. Contracts Upheld 1. Marital-like same-sex couples 2. Principally property-based claims 3. Relationship-based or service-based contract claims III. Consequences of a Restricted Right to Contract A. Contract as Status B. Marriage and Nonmarriage C. Possible Reforms Conclusion Appendix A: Nonmarital Contracts Between Different-Sex Partners Appendix B: Nonmarital Contracts Between Same-Sex Partners Introduction

A curious thing is taking place. As the social institution of marriage has become more companionate, (1) the laws regulating marriage increasingly treat the relationship as being composed of individual and autonomous actors, each wholly independent from the other. (2) Marriage, once governed by the reciprocal rights and duties established by the explicitly gendered and generally lifelong statuses of husband and wife, now allows for relatively easy entry into and exit from its strictures; it also accommodates a spouse's right to contract around many of the once-sacrosanct marital obligations. (3) The general outlines of this legal evolution were already identified in 1861 by Henry Sumner Maine, whose well-worn declaration affirmed that "[t]he movement of ... progressive societies" is marked "by the gradual dissolution of family dependency and the growth of individual obligation in its place." (4) Stated in slightly more familiar terms, the move is one from status--"those forms of reciprocity in rights and duties which have their origin in the Family"--to contract--a "social order in which all ... relations arise from the free agreement of Individuals." (5)

Much has been written on the accuracy of Maine's statement, and many discussions have addressed whether marriage, along with family law more broadly, can best be understood through status or contract. (6) A great deal especially has been written on how individuals today can more freely write around "background obligations by private contract, either before or during marriage." (7) Spouses have the right to alter terms that state statutes would otherwise import into their relationships and to particularize agreements to fit their specific needs. (8) They can even, in certain circumstances, sign away rights to property that would otherwise inhere in the relationship on account of their marriage. (9) The fact that married women--who were once unable to contract by virtue of the coverture imposed by marriage (10)--are now able to do so is most conspicuously emphasized in cases where they have signed away rights to property that marriage would have granted them. Courts explain how "[s]ociety has advanced ... to the point where women are no longer regarded as the 'weaker' party in marriage." (11) Having discarded the presumption "that women are uninformed, uneducated, and readily subjected to unfair advantage," courts insist on upholding the agreements they enter into. (12)

Certain terms, however, remain off the table. Contracts involving sex are still unenforceable. (13) So too are contracts for services provided during the marital relationship, like child-rearing or housecleaning. (14) As such, where spouses--typically wives--seek to secure rights to property for services rendered, they are unable to do so through contract. (15) The literature concedes that the status of marriage continues to function as a limit on the right to contract. (16)

While the scholarship has problematized how courts enforce contracts within marriage and the family more broadly, scholars have for the most part uncritically accepted contract as a solution to the plight of the unmarried couple. (17) Indeed, how contract has functioned in intimate relationships outside of marriage has been less studied overall--surprisingly, perhaps, given that unmarried couples have no status-based rights. (18) This Article turns to nonmarriage as a companion subject necessary to fully consider how the right to contract fares in the context of intimate relations writ large. (19)

Addressing nonmarriage head-on is therefore important because courts and scholars routinely assume, as a descriptive matter, that unmarried couples can definitively arrange their property rights at the end of a nonmarital relationship by entering into an express contract. (20) The main problem, as they characterize it, is simply that not many couples actually take advantage of this option. (21) Every so often, this descriptive claim leads to the normative one that individuals who request property at the end of a relationship should have made their intent explicit by entering into a contract. But this assumption works more perniciously even for those sympathetic to recognizing rights for unmarried couples, given that the option to contract offers a clear way out of the thorny questions of whether and how to provide individuals who are not married with rights against each other.

At a time when individuals are marrying far less than before, and when no ex ante rules regulate the economic rights of unmarried couples, it is imperative to analyze whether contract functions as a viable legal option. (22) This Article does just that and shows that contract remains wanting. In particular, this Article argues that the work done by the status-based rules of marriage is now done through contract law outside of marriage--through courts' decisions about whether to enforce agreements entered into by individuals in nonmarital relationships. (23) The right to contract is limited by an intimate relationship not only within marriage but also, significantly, outside of it. By declining to recognize certain exchanges, namely those that involve services rendered, contract law extends the impediments created by status to relations that lack any such formal marker. In this way, contract works more expansively than status--the restrictions on the right to contract have moved beyond marriage to also impact "single" individuals in nonmarital relationships. (24) Despite courts' various attempts to keep marriage and nonmarriage distinct, the way they interpret agreements outside of marriage has the effect of blurring the boundary between the two.

Part I begins by addressing the literature on how express contracts have been limited in marriage and other formal family relationships. (25) This Part situates the scholarship addressing a family member's inability to contract within the larger history of marriage. In doing so, it focuses on the doctrine of coverture as a means of exposing the legal mechanisms through which status, property, and contract have been linked. To this day, coverture colors the marital relationship both by limiting a spouse's ability to contract and by ensuring that labor performed in the home is more akin to an obligation, outside of the realm of exchange. (26) Contemporary gender-neutral rules mean that these limits apply regardless of the spouse performing the work--which, in turn, make the limits more difficult to identify. (27) The ways coverture constrained a wife's role both at home and at work are important to disclose with some specificity, given that this regime provides the paradigmatic model for how the right to contract is limited in similar ways, and to similar effects, across intimate relationships.

Part I then leaves the ambit of marriage and turns to the literature on nonmarriage. The right to contract in this space is generally assumed rather than assessed, and its shortcomings as a matter of doctrine are neither raised nor questioned. (28) To be fair, such assumptions find support in broad assertions made by the cases themselves. The decisions concerning marriage proper refuse to recognize contracts for services by reasoning that they are seeking that which is constituent of the marital relation. (29) Outside of marriage, these same considerations ought to present no similar barrier. Courts state as much in the nonmarital cases, generally agreeing that the mere existence of the relationship will not impair an individual's right to enter into enforceable agreements. (30) Scholars consequently accept these pronouncements at face value, concurring in the conclusion that unmarried individuals can enter into agreements for precisely the kinds of services that spouses cannot. (31) Instead, the problem scholars have identified is that nonmarital couples rarely formalize their intentions and often fail to put anything in writing. (32)

Part II examines whether the prevailing assumptions in the literature are borne out by looking at the cases that consider allegations of express contracts outside of marriage. This Part provides a comprehensive account of the decisions that have considered an express agreement--which contract law defines as either a written or an oral contract. (33) This Part intentionally limits itself to express contracts to focus on the "easiest" cases; it seeks to avoid any of the critiques associated with inferring contracts into a relationship, even though standard contract law routinely allows for, and recognizes, implied agreements. (34) Around 120 opinions address express contracts at the conclusion of a nonmarital relationship. (35) Because of the relatively small number of decisions, this Article is able to survey the entire realm of cases that address an express contract entered into in a nonmarital relationship. It finds that while most courts acknowledge that "the mere fact of nonmarital cohabitation does not destroy the parties' rights to recover from one another in accordance with their legitimate contractual rights and expectations," (36) they tend to enforce these contracts in only a narrow set of circumstances. (37) Contract law thus...