Understanding the Legal Nature of Marriage
The Legal Nature of Marriage
The term “marriage” is ambivalent, applying equally to two distinct concepts:
- Marriage in fieri: This refers to the legal act whereby spouses mutually consent to form the marital union. It is equivalent to the ceremony or the moment when the marriage becomes legal.
- Marriage in facto esse: This refers to the conjugal relationship or the community formed by the husband and wife, that is, the legal relationship between spouses.
This duality of meaning is the basis of two classical controversies in the area of marital law regarding its legal nature:
- Should marriage be considered part of public law or private law?
- Is marriage a contract or an institution?
Contractarian Thesis
The contractarian thesis, which views marriage as a contract, was popular during the 17th century. It posits that the contractual nature is the core of the entire doctrine on marriage. However, some scholars have denied this contractual nature, arguing that:
- The voluntary agreement in marriage is not sufficient to define it as a contract because the parties cannot alter the marital relationship in a manner contrary to the provisions of the law. Certain formal requirements are necessary for legal validity.
- The subject matter of marriage, that is, personal or family relationships, is foreign to the typical subject matter of contracts.
- Many of the rules governing contracts are irrelevant to marriage (e.g., the principle of mutual consent).
Doctrinal Nuances of the Contractarian Thesis
Contract theory “sui generis”, personal and social development: Proponents of this view acknowledge that not all features of contracts can be applied to marriage. Therefore, they refer to it as a sui generis or unique contract. This contract requires bilateralism (it can only be entered into by two persons of opposite sex capable of providing consent) and has certain effects specified by law. The parties do not have freedom of contract in that the regulatory scheme of marriage cannot be altered or modified by their free will.
It is considered a contract of “ius cogens” or a binding law, which has some characteristics that differentiate it from contracts covered by private law.
Marriage as an Act of State or a Complex Business
This perspective involves both the wills of the spouses and the will of the state (in civil marriage) or the Church (in religious marriage).
Critique: This thesis overstates the official role of the State and the Church in marriage. They merely describe the legal business created by the parties and the resulting relationship. Therefore, the consent of the parties and the function of the State or Church cannot be considered on the same plane.
Marriage as a Bilateral Business
This view sees marriage as stemming from the will of the parties but not as a contract, as it lacks a patrimonial nature.
V. Reina believes that defining marriage as a contract of family law is permissible but may seem less satisfactory in current legal practice, which reserves the term “contract” for legal relationships with financial content.
Theory of Marriage as an Agreement, Not a Contract
This theory argues that in a contract, the parties’ interests are conflicting or divergent, while in marriage, they are parallel or convergent. Critique: There is no guarantee that the interests of the parties in a marriage are always parallel or convergent.
The Institutionalist Thesis
The chief proponent of the institutionalist thesis is Giménez Fernández.
This thesis conceives of marriage as an institution, arguing that it better reflects the idea that marriage is a set of relationships imposed by the state. Institutionalists adopt the concept of institution as understood in civil doctrine.
This concept better explains and develops the nature, characteristics, and legal relations that bind spouses because:
- It preserves personal freedom (free consent to marriage is about accepting the institution of marriage).
- The terms of the marriage are already established and unchangeable by the spouses.
From this perspective, marriage is a structure previously established by the legal system through non-derogable legislation to which the parties adhere. The effects of marriage derive not so much from private autonomy as from the institutional configuration. Therefore, marriage fits into the legal-institutional category.
Giménez Fernández on the Concept of Institution
“Pre-established legal system of links with a specific aim and publicly known, to which those capable of it freely give their membership, forcing their compliance with the partner, as they compete for free choice.”