Update: See also
Q:
I had a question on marriage contracts: are they enforceable contracts or just promises? I don’t see any title ownership claims being exchanged when the people just say “I will be faithful,” it sounds just like a promise, would this part of the marriage contract be enforceable and would someone who cheated be held liable for breaking this contract? I don’t see how they would… I don’t know what the wording is on the contracts, but I don’t see how someone should pay restitution or go through the legal trouble for cheating if it’s just breaking the promise.
KINSELLA:
[He is referring to my discussion of “mere promises” or binding promises not being really what contract is about, in my discussion of Rothbard’s title-transfer theory of contract, in Legal Foundations of a Free Society, chapter 9, on contract theory.]
From a civil perspective or relationship perspective it’s a promise, or a binding commitment. From a legal perspective, the entering into of such a relationship can have legal effects which in the law is called the matrimonial regime. So if you live in an area where it’s assumed that married people (people who hold themselves out as being married) they want to co-own property, their incomes, and so on. So the existence of the private relationship can give rise to implications and assumptions and legal presumptions and results. The same of course could be true with two friends or sisters who co-habitate or even a polyamorous thruple or what not who choose to have a relationship that has legal implications–or gay people or whatever. If two men call themselves married, have a wedding ceremony, etc., it can be presumed they prefer the legal incidents of their relationship to be determined pursuant to this choice, unless they do a prenup to opt-out of local default legal presumptions. Doesn’t matter if the local citizenry is conservative and doens’t recognize two men as being “married”; you can call them what you want but the point is they have manifested their intent to be co-owners, to have hospital visitation and decision rights, and so on.
see The Libertarian Case for Gay Marriage.
As for your more specific question: it just depends. If the local custom and law is that man and wife are co-owners and/or that a spouse owes alimony to the other in case of a divorce, then you are subject to that, unless you opt out with your own prenuptial agreement. So whether the spouse “cheating” or not changes the default assumptions about distribution of assets and alimony depends on local custom and law, or the agreement the spouses sign.
But in general, yes a promise is distinct from legal rights and contract, but words like “I promise” can have implications for how we understand what the (legally relevant) intent of the party was.
Let me know if this helps–
