미국 혼인법의 개별화 경향 - 혼인전합의법 및 협약혼인법을 중심으로 -

Personalization of Marriage in American Law - Focussing on Premarital Act and Covenant Marriage Act -

As a result of the change in background rules, the consequences of judicial reluctance to allow antenuptial contracting have reversed over the past thirty years. State policy requiring all marriages to conform to a single set of legal rules was outdated because of the heterogeneity of desirable marriages. The traditional marriage seemed to assume that all couples were young, white, middle-class adults, never married before, who desired a permanent marriage with traditional sex roles and with procreation as a major purpose. Now the laws have changed, but they seem equally rigid, and desire a permanent marriage and traditional sex roles. Therefore each couple should be given the option to have their marriage governed by traditional rules of marriage and divorce, as enacted in Louisiana and other states. Courts should enforce agreements as to the terms of divorce, at least regarding the division of property and should be authorized to also enforce private agreements regarding grounds for divorce and terms of an ongoing marriage. It is better to foster preferences for extending private control and diminishing governmental control in marital matters. In the past, religious and social norms defined a “marriage” and the gender roles within a marriage. The law did not allow contractual variations out of keeping with the religious and social norms. As a matter of public policy, it was thought that the interests of society required the fostering of a certain type of marriage, in the interests of child rearing and stability, and the desires of the individual needed to be subordinated to social order. Thus, social norms, religious rules, and legal doctrine prevented people from entering into a marriage agreement that might allow easy dissolution or unusual roles. Some of the reasons why it was once difficult to contract out of a traditional marriage are clear. But many of those restraints on individual liberty have weakened or disappeared. Prevailing opinion has changed. Although still limited, a marriage today is considered much more a matter for the two parties concerned, not for society. Yet few people entering their first marriage memorialize their shared understandings, obligations, and aspirations by contract. The rarity of individualized contracts is partially explained by inertia and partly by lack of awareness that being bound by marital contracts can be a good thing for both parties. But another reason is that no one can be sure that courts will enforce the contracts. The law has not kept pace with societal sensibilities. No-fault divorce might seem to foster individual choice, in keeping with the spirit of the age, but it does not really favor individual choice. Some people would like to be able to choose to bind themselves in a permanent marriage, yet the law makes it difficult to personalize the contract. One legal size is presumed to fit all. The chief problem comes in being unable to specify the grounds for divorce, either directly or through using the terms of divorce to penalize a spouse who is at fault. The long-established rule against judicial interference in ongoing marriages further hinders the establishment of individually tailored marriages. Statutes could usefully provide forms with several enforceable and reliable options.