Contracts concerning marriage

Preserving the Status of Marriage

The courts regard it as being in the interests of society to preserve the status of marriage. Certain types of contract which are regarded as threatening to the institution of marriage are therefore treated as illegal. 

Future separation

A contract between spouses agreeing to separate at some point in the future is invalid if it is made either before the marriage of during cohabitation. In Brodie v Brodie, Mr Brodie only agreed to marry the woman who was carrying his child if a written agreement to separate was drawn up. This among other things precluded the woman from bringing legal proceedings against him. The agreement was held to be contrary to public policy, and so could therefore not be enforced. The woman was free to take legal action.

This rule does not apply to an agreement which does not relate to the distant future, but is made at a time when the marriage has already broken down and in anticipation of immediate separation. It is not contrary to public policy for the parties to a failed marriage to make agreements about the distribution of their property, or for the maintenance of one party or the children of the marriage by the other. Nor does this rule affect arrangements made by spouses who have been separated, and are then reconciled, since in this situation the making of the agreement is likely to aid the reconciliation.

One type of agreement, which, on this basis, is clearly unenforceable in English laws, is the ‘pre-nuptial’ agreement common in the United States, particularly where one party is very wealthy. This type of agreement is made prior to marriage in order to avoid, or mineralise, disputes about the distribution of property should the marriage break down. Such an agreement will, however, be regarded as contrary to public policy by the English courts, and therefore unenforceable. Whether this should continue to be the case is arguable. It might be said that such agreements are supportive of the institution of marriage, in that they discourage parties from marrying for the wrong reasons (for example, ‘gold digging’) and from separating in order to obtain a share of the wealthier party’s fortune.

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For more information on:

  • Restraint of marriage
  • Marriage brokage