The Freedom Center Fall 2019 colloquium series presents Albertina Antognini, Associate Professor of Law at the University of Arizona.  

This Article considers the limits of the right to contract across intimate relationships, with a focus on nonmarital relationships. It begins by setting out the puzzle of why courts are reluctant to uphold agreements to distribute property at the end of a nonmarital relationship at the same time that they eagerly enforce premarital contracts at the time of divorce. The answer seems to rely on how the law addresses homemaking services. The Article’s central argument is that contract doctrine currently does the work that status-based rules used to do in the context of marriage. That is, the way courts interpret agreements is similar to the effect that status once had – both limit the rights to property of an individual requesting them based on services rendered in the course of an intimate relationship. This holds true within marriage, but also, significantly, outside of marriage. In this way, contract works more expansively than status once did – the restrictions on the right to contract are carried beyond marriage to also impact individuals in nonmarital relationships. At a time when individuals are not marrying, and the Uniform Law Commission is considering what rules ought to regulate the economic rights of nonmarital couples, it is imperative to analyze whether contract is a viable legal option. This Article shows that the right to contract leaves most individuals relying on it with little recourse, whether married or not.

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