D. Marriage: Status or Contract?

Author:Julien D. Payne - Marilyn A. Payne

Page 16

Marriage is more than a simple contract between two people who live together as husband and wife. Marriage is a status that is conferred on individuals by the state. Marriage has a public character and, as such, is subject to general laws that dictate and control the rights, obligations, and incidents of marriage, independently of the wishes of those who marry. Although based on a contract between the parties, marriage is a status to which the state attaches its own conditions as to its creation, duration, and consequences.6

The principle of the contractual autonomy of the parties has, nevertheless, been endorsed in judicial decisions and statutory provisions that expressly confer certain powers on married persons to regulate their own affairs during marriage and on its termination by death or divorce. Marriage contracts and separation agreements are of particular importance in this context; they will be examined later.7

[6] Newson v Newson and Davidson, [1936] OR 117 at 126 (HCJ).

[7] See Miglin v Miglin, 2003 SCC 24; Hartshorne v Hartshorne, 2004 SCC 22.

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