USA – DELAWARE Trends and Developments Contributed by: Curtis P Bounds, Bayard
riages fail, therapists and counsellors consist - ently point to the inability to communicate and the loss of mutual trust as the underlying cause. To understand marriage (and divorce) as a con - tract further, it is worth looking at contract law and its theory of damages, which identifies three primary forms: restitution, reliance, and expec - tancy. Restitution aims to return the injured party to the position they were in before the contract. Reliance damages go further, compensating for losses arising from the breach. Expectancy damages, the most comprehensive, seek to pro - vide the injured party with the benefit they antici - pated from the contract. These principles can be analogously applied to divorce settlements. Applying this theory of contract damages to remedies in divorce, the commentators on divorce law note, by analogy, that – for short- term marriages – restitution is often sufficient. Each party may leave with what they brought into the relationship, and financial entangle - ments are minimal. For longer-term marriages, however, reliance and expectancy damages come into play. A spouse who gave up a career to care for children, for example, may be entitled to receive alimony as well as child support from the other party to account for the reliance on the marriage’s promises. In the longest marriages, courts often aim to provide the economically dis - advantaged spouse with a share of the marital estate and future income to such an extent that they receive something closer to the “benefit of the bargain” – a standard concept in contract law. This concept of contractual damage in a divorce is connected to this idea that could be described as a “phantom” marriage. Unlike other areas of the law, where specific monetary awards are sufficient to award damages, the remedies of
divorce – generally described earlier as restitu - tion, reliance and expectancy – are often tied up in long-term obligations of dividing property over time, paying support and, especially as related to children, telling each party what they have to do and where they have to be at a given point in date and time. As such, the remedies in mari - tal dissolution orders and agreements are the embodiment of substitute contracts to ensure that the responsibilities and obligations of the actual marriage do not vanish at the couple’s dissolution. Society cares so deeply about marriage as an institution, such that it compels formerly married parties to remain in a phantom marriage until the practical and economic ties of the relationship of that phantom marriage are finished. Divorce laws and the courts that enforce them substitute in the place of the micro-contracts of marriage a set of new, final (or at least penultimate) arrange - ments between the parties. These agreements often ask or require individuals to accept terms they might otherwise reject, ensuring that nei - ther party can simply abandon the other without consequence. Returning to the problem faced formerly by same-sex couples, they did not have this reme - dy, and first had to seek marriage equality so that they could receive the benefits of divorce equal - ity. Why divorce equality was not much voiced in the promotion of same-sex unions and marriage may have been political, but it may also have been due to society’s failure to recognise divorce as a public good. After all, “why would anyone want to get married just so that they could get divorced?” is an easy question that fails to rec - ognise the public need for divorce laws. Making divorce the perceived enemy of mar - riage, instead of its companion, is also to blame
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