‘計劃婚姻’의 法的 評價 - 夫婦契約의 拘束力 -

Legal Valuation of Individually Tailored Marriages

Premarital agreements might specify the terms of marriage and divorce, including provisions dealing with the distribution of property, custody of children, and perhaps what behavior is permitted the parties after divorce. In the past, social norms defined a “marriage” and the gender roles within a marriage. The law did not allow contractual variations out of keeping with the 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 and legal doctrine prevented people from entering into a premarital agreement. Although still limited, a marriage today is considered much more a matter for the two parties concerned, not for society, to structure. 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 premarital contracts can be a good thing for both parties. Another reason is that no one can be sure that courts will enforce the contracts. The law has not kept pace with societal sensibilities. The freedom valued by society and offered by expanded social norms is not enabled by the law. Moreover, social norms and families have become weaker. With nonlegal constraints weakening, people need legal institutions to pick up the slack, allowing them to make credible commitments to each other. It is time for legislators and judges to clarify to what extent courts will enforce premarital agreements. The center of the divorce-law discussion relates to what should be the best rules for custody of children and allocation of marital assets or future income. Many scholars raise the controversy up a level, arguing that one theory or another should be used in deciding how to reform the law of marriage. At either level, the argument assumes that we as a society need to decide what is best for people. The problem is that the debate regarding whether society or couples should decide what is best for couples has not been resolved satisfactorily. The legal system should increase private choice in marriage and divorce law. What is essential is that legislatures recognize that people need to be able to commit themselves to each other by judicially enforceable agreements. Statutes could usefully provide forms with several enforceable and reliable options. The law does not need to provide enforcement for every possible kind of marriage, but it should provide clear and dependable enforcement for a few kinds. In the interests of individual autonomy, self-control, and elf-realization, in the interests of privacy and efficiency, couples ought to be allowed to structure their lives as they wish.