Ruth Sarah Lee (Harvard Law School) has posted Locking in Wedlock: Reconceptualizing Marriage Under a Property Model (Faulkner Law Review, Forthcoming) on SSRN. Here is the abstract:
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Legal commentators have long understood divorce laws to reflect our cultural and ideological understanding of the role of marriage, but have criticized topical divorce laws for either failing to match up with current notions of fairness, or for under-compensating at least one party. As divorce laws have evolved, the way we conceptualize marriage has also evolved. Marriage has been modeled as, inter alia, a commitment, a governance, a promise, a tort-doctrinal duty, a status, and now more popularly, a contract or a partnership. Each model provides its own corollary for fairness and opportunism between spouses, possible remedies upon divorce, and personhood.
This article sets out a new way to conceptualize marriage – as a property right. While it has long been promulgated that the right to marriage is property, and less stylishly, that a spouse herself is property of the other spouse, the purpose here is to examine the marriage itself as a property right that may be subject to familiar property rules.
Envisioning marriage as property is not only a novel and reasonable way to think about the role and impression of marriage, but offers several advantages, including: (1) repairing the notional problems with viewing marriage as a contract or a partnership, (2) capturing more candidly the personal nature of marriage, and (3) correlating with remedies more consistent with prevailing standards of fairness both in theory and in practice, while at the same time giving courts room to develop in the future. Furthermore, it allows us to conceptualize the evolution of marriage without hopping around different models – for example, claiming that marriage transformed from a Status/Commitment model into a Partnership/Contract model. Instead, my framework facilitates a smoother conceptualization of marriage as property – from inalienable before the nineteenth century, to fully alienable, today.
