Model  Marriage Obligations Statute (drafted as if for Minnesota).

[Drafted by Prof. Katherine Spaht, LSU Law]

Minn. Stats. sec. 517.22:

a. Legislative Finding:

Marriage is an emotional, sexual, financial, and parenting union dedicated to the good of the husband and wife, as well as to the creation and protection of the next generation of children. Only by first entering a faithful sexual union including a common life together can men and women ensure that any children their sexual union produces will enjoy a mother and father in the same home. Marriage thus also connects fathers with their children, and protects women from the unfair burdens of parenting alone.

b. Statutory language:

Spouses owe to each other mutual respect, fidelity, and mutual support and assistance; they also commit to jointly care for any children they have together. Respect requires each spouse to exhibit regard or esteem for the other. Fidelity is sexual faithfulness, precluding a spouse from sexual intercourse with another person. Support means economic resources sufficient to provide for not only the necessities of life, such as food, clothing, and shelter, but also the ordinary conveniences of life, including transportation and labor-saving devices. Assistance is cooperating in the accomplishment of tasks that support the spouses' life in common, including securing medical assistance for an ill or infirm spouse.

NOTES

1. This statute simply makes explicit what is implicit in the common law understanding of the nature and extent of obligations assumed by a husband and wife when they marry. Such statutes exist in other states, e.g. California (Cal. Fam. Code sec. 720; Security First National Bank of Los Angeles v. Schaub, 162 P.2d 966 (Cal. App. 2d., Div. 3, 10/31/45); Schletewitz. Schletewitz, 193 P.2d 34 (Cal. App. 4th Dist. 5/4/48)); Louisiana (La. Civ. Code art. 98; comments (b)(c)(e)); and Idaho (Idaho Code § 32-901).
2. In recognition that there exists misunderstanding about the nature of the contract of marriage, this statute unambiguously imposes upon spouses the duties of mutual respect, fidelity, support and assistance, as well as a commitment to jointly raise and care for any children they have with each other. These classic legal responsibilities have been understood as incorporated within the meaning of "marriage." To protect against any redefinition of marriage that might ultimately exclude any one of these obligations, this statute explicitly imposes and defines them.
3. Naturally, fidelity defined as sexual exclusivity is the hallmark of marriage; "even in the modern world one still finds general agreement that marriage entails a commitment to sexual fidelity." ALI Principles of the Law of Family Dissolution, sec. 5.02(2), Reporter's Notes, comment (e) at 796-97. Sexual exclusivity distinguishes marriage from mere cohabitation. This statute makes that distinction which is clear in fact, also clear in law. Marital status should and does in most cases "signal the community that the spouses are not available for other intimate relationships, and thus discourages outsiders interested in intimacy from approaching married persons." Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency 19-20 (working paper 2004) (http://law.bepres.com./uvalawps/uva.publiclaw/art. 8).
4. This explicit obligation to be sexually faithful to one's spouse forms, at least in part, the basis of the tort of intentional interference with marriage. Intentional interference with marriage requires proof that the wrongdoer, the co-respondent in adultery of the unfaithful spouse, knew or should have known of the marriage of the unfaithful spouse and yet committed an act of adultery with him. In fact, adultery of the other spouse continues to be the reason most frequently cited for a divorce. See Paul Amato & Denise Previti, People's Reasons for Divorcing: Gender, Social Class, the Life Course, and Adjustment, J. Fam. Issues 602 (July 2003). Not surprisingly, a spouse who cited fault on the part of the other spouse as a cause for divorce, such as adultery, experienced the poorest adjustment after divorce.
5. The other three obligations imposed upon spouses—respect, support, and assistance—embody well-understood community expectations as well as spousal expectations about appropriate marital behavior. These three obligations represent the principal core of a complex set of social norms that promote cooperation between spouses. "These norms express the importance of the marital relationship…and create behavioral expectations for both husband and wife that underscore their mutual commitment to the relationship…" Elizabeth S. Scott, Marriage, Cohabitation, and Collective Responsibility for Dependency 19-20 (working paper 2004) (http://law.bepres.com./uvalawps/uva.publiclaw/art.8). Other such norms include trust (incorporated within fidelity), reciprocity, and sharing (incorporated within respect, support, and assistance). The statute carefully defines each word used as a legal term of art and clarifies for the reader the meaning of each.
6. These obligations imposed by law upon married persons appear in statutes throughout the modern world. See, for example, Philippine Fam. Code arts. 68, 71; Quebec Code Civ. arts. 392, 395; Span. Codigo Civ. arts. 67, 70, 71; Port. Codigo Civ. arts. 1671(2), 1672, 1673; Chilean Codigo Civ. arts. 131, 133; Braz. Codigo Civ. arts. 1566.IV, 1566.V, 1567; Fr. Code Civ. arts. 213, 215; Ger. Burgerliches Gesetzbuch secs. 1353(1), 1356(1); Ven. Codigo Civ. arts. 137, 139, 140; Dutch Civ. Code arts. 81, 82, 83(1); Argentine Codigo Civ. Code art. 199; Mex. Codigo Civ. Code arts. 163, 164, 168; Italian Codice Civile arts. 143, 144, 147; Swiss Code vi. arts. 159, 162.