Family Law

Although there is a trend toward the public enunciation of more detailed and prescriptive rules for financial adjustment, there is a parallel trend towards greater contractualization of marriage and divorce. Contractualization refers to the use of private contracting as a way of ordering domestic relationships, both while they are on-going and when they end. As a legal technique, it has long been available to unmarried couples (subject to issues of enforceability, long since resolved—see, for example, Marvin v. Marvin [557 P.2d 106 Cal. 1976]); but legislators now seem keen to extend its possibilities to married couples as well, pointing to the control that enforceable contracts provide parties over their own affairs. Each relationship may potentially acquire its own proper law, determined by the parties themselves rather than by an outsider armed with discretionary powers of distribution. In this way, private contracting is set to become an autonomous, or semiautonomous, source of legal norms.