Marriage is a legal contract and comes with a range of legal constraints and yet there is a tendency to disregard this in favour of romantic notions of the union.
While marriage is seen as a binding agreement between two people who are in love, it’s not generally viewed as a financial agreement - so when one party seeks a legal pre-nuptial agreement, this is often interpreted as casting doubt on the veracity of the ‘love match’.
But what if we accept that marriage and money are inextricably linked; that because marriage has in fact always been an economic contract, the law has been forced to place an economic value on the institution? Indeed what if we accept that all intimacy, even casual sex, has a financial dimension?
These are some of the questions UTS Law senior lecturer, Dr Renata Grossi seeks to answer in her latest research that analyses a recent High Court of Australia decision, Thorne v Kennedy (HCA 2017).
The Court found for the plaintiff in this case and overturned the pre-nuptial agreement. For Dr Grossi, the decision presents an opportunity to explore a range of questions:
Are love and money the separate spheres we assume they are or are they connected? If so, how and what are the consequences of how we theorise the relationship between them? What is the law’s role in this enquiry?
Leading scholars in the field suggest love and money are intricately entwined and that law creates a ‘structured altruism’ that allows for individual interests to be balanced with joint interests. Dr Grossi suggests a financial agreement can be seen as one possible instrument to achieve this.
However she does not conclude that we should be uncritical about the way agreements are used.
We cannot accept the good things about using contract to give us control over our lives without addressing the potential pitfalls - the law needs to address the real problems of choice and consent that the case of Thorne v Kennedy highlights.
Dr Grossi suggests the High Court decision opens the way for a more realistic discussion about the relationship between love and money; intimacy and financial responsibilities.
Further reading
If you are interested in undertaking research on this topic, take a look at our postgraduate law research degrees.