EPTWith the engineering of no-fault divorce, a number of wedded individuals have turned the marriage contract into a put option exercisable by the applicant (person seeking divorce). Once the put is exercised, the respondent (spouse of the applicant) must: surrender half of the family assets; suffer potential eviction from home when applicant exercise the call option to secure their children; incur potential future liabilities and potentially remain celibate until the applicant accepts the mating call of another lover, potentially using monies raised by the indebted respondent, which should have been used for the betterment of their children, whom in return may cease to call the respondent "mom" or "dad". Some respondents believe this contract may be unfair as the put option put their fate beyond their control for reasons also beyond their control. Tragically, the applicant entered divorce proceedings with the goal to pursue personal freedom away from the shackles of marriage could inadvertently cause the respondent to descend deep into the financial and social slavery of divorce, using a legal provision intended to make the two equal in outcome. Even more ironic are cases when the applicant is awarded child custody based on the court's consideration of the child's best interest when the applicant's decision to divorce would likely lead to the contrary. In contrast, the respondent whom may have opposed the divorce on grounds of the child's best interest. The inability of couples and judges to reach consensus on what marriage and divorce really is make the contract of marriage comparable to sub-prime mortgage.
And like the market confidence on sub-prime mortgage, that of the contract of marriage is bleak also. A new type of contract is needed to regain market confidence. It is known that market confidence is raised when they hear certain announcements. For example,
"I, Eve, take you, Adam, to be my husband. I promise to be true to you in good times and in bad, in sickness and in health. to love and to honor you, until death do us part."
If that was written on paper, signed by Eve, read before the presence of Adam, the pastor and the public. Literally, there is a contract. And it is enforceable and justifiable too!
- "To be true to you" means infidelity constitute breach of contract
- "In good times and bad" means the use of no-fault divorce provision constitute breach of contract
- "In sickness and in health" means a trial judge can award support payments to a sick ex-wife instead of being utterly confused. (Bracklow v. Bracklow, [1999] 1 S.C.R. 420, CANADA)
- "To love and honor you" means physical and emotional abuse constitute breach of contract
- "Until death do us part" means life-pensions can be justified from a severe breach of contract
This allows the court to determine, on an objective basis, whether a spouse had in fact wronged the other, the severity of breach and in a better position to justify the quantum and duration. It also allow greater freedom and fairness. If Adam knew Eve already have crippling illness, he could request "in sickness and in health" be struck. If Eve wanted sexual independence, "to be true to you" would be omitted. If they object to paying life-pension in the event of divorce (regardless of fault or no fault), "until death do us part" could be omitted. Of course, the couple should also be entitled to pledge further loyalty or insert terms relevant from their religious beliefs within the contract. But as always, the court may ignore unreasonable conditions which are not permissible or enforceable under law.
No-fault divorce would not be completely eliminated in this model but if "in good times and bad" was part of the contract, requesting a no-fault divorce would certainly raise the severity of the breach with corresponding adjustment for support payments.
Effectively, this serve a similar function to prenup.
For couples who feel they are not ready to make those vows there is always the option of co-habitation without marriage. For the remaining few ready to pledge their eternal love, make sure your love for her last forever, or else your contractual obligation will be.
