Why is a marriage agreement not a proper
contract? The answer should be in these law
books, an elegant legal solution somewhere in
the hundreds of pages of promised remedies
strewn about the floor at my feet.
But which dusty, worn principles to apply?
Vinculum juris, you might say with a smirk, the
chains of the law. I might prefer pacta sunt
servanda, promises must be kept. Could we
agree on res ipsa loquitur, the situation speaks
for itself?
Contract law offers remedies of money or specific
performance: money to compensate the innocent
party for breach of contract; specific performance
to force the breaching party to perform as
agreed. Specific performance here would be
futile for I have tried time and again to make you
fall back in love with me.
So resitutio in integrum, restore the injured party
to the position she would have been in had the
breach not occurred. Make me whole again or at
least restore me as near as money will do for the
children’s heartbreak, the upset and disruption,
sleepless nights, financial stress. The self-doubt.
Of course, the beauty of no-fault divorce is
there’s no culpability. So very modern. No one is
to blame, even if they are.
It seems our agreement was never really a
legal agreement, for a partnership to sell hot
dogs on a street corner gives rise to more
binding promises at law. Marital assets will be
divided. Spousal and child support based on an
income chart.
I’ll leave this for tonight. Put my head down on
my desk and sleep. Hundreds of years
of powdered wigs, Latin, irrational ratia,
government policy, and contract doctrine may
have given predictability and certainty to trade
and commerce, but offer nothing, nothing at all
to protect the heart.
