'Gradual Marriage' by Jessica Feinberg in (2015)
Lewis and Clark Law Review (forthcoming)
argues
The time has come to reform the law governing marriage. In determining the rights and obligations between spouses arising from marriage, current law does not adequately account for the way in which spousal behaviors and expectations change over the course of a marriage. With regard to intact marriages, under the existing legal framework the spousal rights and obligations enjoyed by couples in intact marriages arise all at once, at the moment a couple is granted a marriage license, and do not change as the years of marriage pass or as children are born to the marriage. In terms of dissolving marriages, with few exceptions, all marriages are subject to the same broad default rules for determining post-dissolution spousal rights and obligations without regard to the length of the marriage or the presence of children within the marriage. Moreover, the substantial discretion granted to judges in the marital dissolution context often leads to unpredictable and inconsistent results. Perhaps as a result of the law’s problematic approach to determining spousal rights and obligations, marriage rates have declined significantly over the past several decades and the institution of marriage has come to occupy an increasingly perilous place in US society. This Article sets forth a comprehensive proposal for an improved legal framework governing marriage that is based upon the concept of spousal rights and obligations arising gradually over the course of a marriage. Under the proposed system, various marriage levels would be established, each providing a package of spousal rights and obligations tailored to marriages that had reached that particular level under the default rules. Ascension among the levels would be based primarily upon the length of the marriage and the presence of children within the marriage, factors which play a strong role in shaping spousal conduct and expectations. Implementation of the proposal would result in a significantly improved legal framework governing marriage.
Feinberg comments
[T]his Article proposes that the legal framework governing marriage should identify multiple levels of marriage, and
spousal rights and obligations should differ depending on the marriage level.
Ascension among the levels would be based primarily upon
the length of the marriage and the presence of children within the
marriage, factors which play a strong role in shaping spousal conduct and expectations.
The first
level
under the proposed system
would provide couples with the opportunity to
receive
important, relevant rights and protections in a low-risk, supportive setting while the
couple
determines
if marriage is right for their relationship. Each additional level would provide a
package of rights and obligations tailored to spouses who had reached that level, with the rights
and obligations generally becoming more significant
with each marriage level.
Judicial discretion
in altering
the default spousal
rights and obligations
applicable to a couple‘s marriage level
would
be limited,
thereby
providing more fairness, predictability, and efficiency
in the context of
marital
dissolution.
Recognizing that there will be
some
marriages in which expectations differ
from that which
generally
would be expected based upon the length of
the
marriage and
the
presence of children
with
in
the marriage, couples
would have the flexibility
to opt-out of the
default level applicable to
them if they determined that the level was ill-suited at the time for
their particular relationship.
This
Article is organized in the following manner.
Section I
provides an overview of the
current state of marriage, divorce, and cohabitation
with
in the United States. Section II analyzes the limitations of the current legal framework governing marriage, addressing
the problems within the framework with regard to both intact marriages and dissolving marriages. Section III identifies
and explains the goals that an improved legal framework governing
marriage should seek to further. Section IV sets forth an innovative and
comprehensive proposal for an improved legal framework governing marriage
that is based upon the gradual accrual of spousal rights and obligations
over the course of a marriage. Finally, Section V explains how implementation of the proposal would further the goals identified in Section III and addresses the concerns most likely to arise with regard to the proposed framework.
