What Is Marriage is all about?It has two distinct meanings: the ceremony by which a man and woman become husband and wife or the act of marrying, and the relationship existing between a husband and his wife or the state of being married. This distinction largely corresponds with its dual aspect of contract and status.
What Is Marriage As A contract In English Law
In English law at least, marriage is an agreement by which a man and a woman enter into a certain legal relationship with each other and which creates and imposes mutual rights and duties. Looked at from this point of view, marriage is clearly a Contract. It presents similar problems to Other contracts—for example, of form and capacity; and like other contracts it may be void or voidable. But it is, of course, quite unlike any commercial contract, and consequently it is suig eneris in many respects. In particular we may note the following marked dissimilarities.
l) The law relating to the capacity to marry is different from that of any other contract.
(2) A marriage may only be contracted if special formalities are carried out.
(3) The grounds on which a marriage may be void or voidable are for the most part completely different from those on which other contracts may be void or voidable.
(4) Unlike other voidable contracts, a voidable marriage cannot be declared void ab initio by rescission by one of the parties but may be set aside only by a decree of nullity pronounced by a court Of Competent jurisdiction.
(5) A contract of marriage cannot be discharged by agreement, frustration or breach. Apart from death, it can be terminated only by a formal legal act, usually a decree of dissolution (or divorce) pronounced by a court of competent jurisdiction.
Marriage as creating status.
This second aspect of marriage is much more important than its first. It creates a status, that is, ‘the condition of belonging to a particular class of persons lie, married persons] to whom the law assigns certain peculiar legal capacities or incapacities’ .2 In the first place, whereas the parties to a commercial agreement may make such terms as they think fit (provided that they do not offend against rules of public policy or statutory prohibition), the spouses’ mutual rights and duties are very largely fixed by law and not by agreement. An increasing number of these may be varied by consent; for example, the spouses may release each Other from the duty to cohabit.
But many may still not be altered: thus neither may contract out of his or her power to apply to the court for financial relief in the event of divorce. Secondly, unlike a commercial contract, which cannot affect the legal position of anyone who is not a party to it. marriage may also affect the rights and duties of third persons and the relationship of the individual with government bodies. So. for example, a person whose negligence causes the death of a married man may be liable in damages to his widow, and a married woman may claim a state retirement benefit by virtue of her husband’s contributions.
