April 10, 2021

Marriage, a legal contract?

One of the most challenging aspects of this blog series has been the question of covenant versus contract. Marriage is one of them, but which one? 

I thought this would be a quick and dirty blog: define and then defend. All with the goal of quickly circling back to our original question: Why do people marry? As the gap in blog posts reveals, there has been nothing quick and dirty about defining contract or covenant. But somehow, it seems important to figure out what marriage really is before we continue with why.

Let’s start with definitions, and perhaps the easier of the two: contract. Here is a word we all know. After all, we deal with contracts on a daily basis. Want to purchase a cell phone? Sign here. Want to use your laptop? Scroll through  twenty pages and click the box to agree. Need to install a car seat for your baby? Not until you agree to keep that seat rear facing and never sue the company if anything goes wrong. We almost always sign, (wink-wink). I mean, who reads this stuff anyway? But, it’s a contract nonetheless. 

Simply put, a contract is an agreement between people (or entities) that creates mutual obligations enforceable by law. The basic elements required for the agreement to be a legally enforceable contract are mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality (hey, I didn’t write this . . . some attorney did!). 

Marriage is an agreement between two consenting adults (mutual assent). It is a negotiation where the vows spell out the terms (valid offer and acceptance). There is often a required waiting time around marriage (adequate consideration). And the legality? There’s a license issued by the government that must be signed, sealed, and delivered. It affirms the legal binding of the couple, granting them certain rights, privileges, and status. These are the very rights that the LGBTQ+ community has demanded, and now received (yay!). And certainly, dissolution of the marriage contract (divorce) requires legal action.

So, marriage is a contract. Yes? Yes . . . but . . . 

But many of our couples take issue with the word contract. After all, their marriage is far more than something comparable to their contract with the lawn maintenance company. It’s far more than a legal piece of paper binding you to twelve months of green, neatly trimmed lawns. Consider: If your lawn company refuses to show up and mow your lawn, you fire them. After all, they violated the terms of the contract, and therefore, the contract is void. But no worries. There are other lawn companies in the sea. This lawn company, now having lost a client, is easily replaceable. You find a new, better company and your lawn is the loveliest on the block.

Marriage, a covenantal binding?

But marriage? Marriage is not your lawn. Your spouse is neither a client nor replaceable. Your spouse messes up and forgets to pick up dinner? You don’t fire them. You (maybe) give them the side-eye, grab your phone and dial for delivery. You forget to move the laundry from the washer to the dryer? Your partner sighs, and you start the load over again before the mildew smell sets in. Because there is this other thing, you see. There is this pesky four-letter word that turns the world upside down and inside out. There is love. And yes, love changes everything. You may love your landscaping company – but until the weeds grow high, not death do us part.

So, we seek another word. Perhaps “contract” is not quite right. It just doesn’t hit the mark. Marriage is a . . . covenant? Now, covenant is more difficult to define. The word lives both in the secular world, as well as the religious world. As my husband, who is also an attorney, recently pointed out (quickly, between phone calls, where he earnestly made time for his wife’s hand-wringing because love and all): “Sarah, all contracts are covenants. We use the word interchangeably.”

That might be true in his world. But all covenants are not contracts. In my theological world, the two words are actually quite different. And settling on a definition has been a slippery process (how theological). I read quite a few theological reference books, consulted several of my colleagues, and even did a general google and Wikipedia search. Covenant is simply a challenging word to define. So challenging, in fact, that this blog will post in three parts (how Trinitarian). For now, I am going to close with a stab at defining covenant. But with the caveat that I am uncomfortable with the definition, and have deliberately kept it vague, opaque, and imprecise. 

Conventionally understood, covenant is a binding agreement between two people or two entities that acknowledges power dynamics, and the scope of time, and makes space for grace in mysterious ways that contract does not.

Think on that a bit. And join me again next week as I unpack that wily and unruly term, and wrestle with marriage within its context.