Contracts Preventing or Promoting Marriage

The U.S. Constitution gives individuals the fundamental right to marry.  See, e.g., Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967).  This right goes hand in hand with the continued U.S. support of protecting the family unit. 

As such, marriage has had a substantial historical role in the U.S. and provides societal benefits in the following areas:

• Procreation: provides a stable environment to raise children;
• Economics: provides more economic security to raise children and offers mutual support for each party;
• Monogamy: provides an exclusive sexual activity situation; and
• Companionship: provides a mutually supportive environment where both parties can potentially thrive and reach their respective goals.

Given the importance of marriage and family values in the U.S., it is not surprising that most contracts that prevent marriage are frowned upon.  Yet, there are some exceptions to this general rule.

Contracts Preventing Marriage

Generally, there are two types of restraints against marriage: (i) a general restraint and (ii) a limited or partial restraint.  Given the sweeping nature of a general restraint it is usually prohibited. 

EXAMPLE: Douglas was the only child of a very possessive mother.  When she died she left all her property to him.  Douglas remained single during his mother’s lifetime so that he could take care of her.  His mother wanted to ensure that he remained single; therefore, she included a provision in her will that he would lose everything if he ever married anyone, thereby restricting Douglas from marrying anyone at any time.  Such general restraints of marriage are against public policy and void.  See, e.g., Cowan v. Cowan, 75 N.W.2d 920 (Iowa 1956).

A limited restraint, which only restricts marriage to a certain extent, has often been upheld by courts.

EXAMPLE: Samantha and Arthur were married for 12 years before Arthur filed for divorce last year.  One clause in their divorce decree states that if Samantha remarries before their youngest child reaches the age of 18; the former marital home reverts back to Arthur for his exclusive use. In evaluating whether this clause provides an unenforceable restraint on marriage (i.e., against public policy), the court relied upon prior case law and any relevant statutes.  In Georgia, where they live, the courts have found that similar clauses “were merely expressive of the duration of the term during which [Samantha] should have received the benefits [of living in the family home with their children].”  Accordingly, this clause is akin to a provision that terminates alimony upon the remarriage of the recipient.  As such, this clause was held to be enforceable because it served a valid purpose rather than being a general restraint on marriage.  See, e.g., Gordin v. Gordin, 249 Ga. 371 (1982).

In addition, states also address these restraints via statutes.  For example, in Oklahoma: “Every contract in restraint of the marriage of any person, other than a minor, is void.”  See 15 Okl. St. § 220 (2004).  Other states’ statutes essentially mimic the language of Oklahoma’s statute. See, e.g., MCA § 28-2-706 (2004); see also Ca. Civ. Code § 710 (2005).

Georgia has a more elaborate statute:

Marriage is encouraged by the law.  Every effort to restrain or discourage marriage by contract, condition, limitation, or otherwise shall be invalid and void, provided that prohibition against marriage to a particular person or persons or before a certain reasonable age or other prudential provisions looking only to the interest of the person to be benefited and not in general restraint of marriage will be allowed and held valid.

See Ga. Code Ann. § 19-3-6 (2005).

Contracts Promoting Marriage

Despite the fact that marriage is encouraged in our society, marriage for hire is against public policy and unenforceable.

A corporation was formed for the purpose of facilitating marriage for its members and the dues members paid were used for this purpose. In particular, each prospective candidate was required to pay annual dues and an annual membership fee.  A portion of the monies collected were paid to a member who married.  The Michigan attorney general brought suit against this corporation because its activities were against public policy.  The court specifically stated: “in such a vital matter as the marriage contract [it] should not be made to yield to subversive private agreements and personal considerations.”  See, e.g., Attorney Gen. v. Marital Endowment Corp., 242 N.W. 297(Mich. 1932).

Yet, matching services—via online dating websites or private individuals—abound today.