USA – DELAWARE Trends and Developments Contributed by: Curtis P Bounds, Bayard
How Divorce Serves as an Essential Aspect of the Marital Contract When Delaware adopted laws allowing persons of the same sex to enter civil unions (a precursor to same-sex marriage within the state and other jurisdictions), five same-sex couples immedi - ately filed for a divorce in the Delaware Family Court. There were, in total, 16 divorces of same- sex couples in 2012, so more than a quarter of these divorces began as soon as the law was enacted. The push for same-sex unions has a long legal and emotional history, even though it seemed to rush upon the United States with a flurry of leg - islation, culminating in the US Supreme Court’s decision to make same-sex marriage legal in all states in Obergefell v Hodges. But questions and problems surrounding same-sex unions arose from various corners and stages: marriage equi - ty, the right to preside over the affairs and estate of a deceased partner, the right to ownership of property protected by joint ownership, the right to retirement and welfare benefits, and – perhaps most importantly – the right to human dignity. For reasons not explained at the time, not much was said about same-sex couples desiring mar - riage so that they could divorce. Most – if not all – the 16 Delaware divorce peti - tions in 2012 arose from domestic unions or marriages recognised in other authorities, where the couple had since relocated to Delaware and could not obtain a divorce. It is not necessary to look individually at any of these divorces for insight into why the couples married or divorced. Regardless of those details, it is possible to draw one important understanding – often missed by critics and advocates of divorce alike – and that is the importance of divorce to the institution of marriage.
Marriage is a contractual relationship. It is not, however, the initial promises made before an officiant, whether in a religious or secular cer - emony. Those promises are often illusory and unenforceable in a legal sense. By way of exam - ple, if one party files for divorce the very next day, that party can typically obtain a divorce without financial consequences unless the cou - ple made specific legal agreements before mar - riage (ie, in an antenuptial agreement). Marriage, as a contract, develops over its course. Each party engages in actions and exchanges, large and small, that shape the marital relationship – for example, “you wash the dishes and I will take out the trash” or “you take the children to school and I will wait for the dishwasher repair”. These everyday interactions are micro-contracts involving offer, acceptance, performance or, at times, breach and damage – all of which make up the contract of marriage. In a marriage where the parties’ promises are made by the couple and kept, trust between them is not broken and their communication remains intact, the success over time “until death do us part” can be safely predicted because the couple are able to continually make the small agreements day-to-day that are necessary to form the contractual basis of their marriage. But every marriage undergoes small breaches – failing to follow through on small obligations or more significant issues such as infidelity, finan - cial mismanagement, or abuse – and, as these damages to the marriage contract accumulate over time, they often lead to a dissolution of the trust and the concomitant communication nec - essary between marriage partners. Such break - downs are the primary causes of divorce, even though society and media focus on the second - ary causes of human behaviour. While issues such as disagreements over finances or infidel - ity often dominate discussions about why mar -
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