[雙語(yǔ)翻譯]婚姻法外文翻譯--婚姻契約的法律與經(jīng)濟(jì)學(xué)（英文）

1、THE LAW AND ECONOMICS OF MARRIAGE CONTRACTSIan SmithUniversity of St AndrewsAbstract. Growth in property ownership has raised the stakes in the distribution of financial assets on divorce. Given high risks of marital fai

2、lure, this has stimulated the demand for private ordering through enforceable marriage con- tracts. This paper surveys the existing law and economics literature and legal practice to consider the state of knowledge on th

3、e economic theory, scope and limits of written nuptial agreements.Keywords. Marriage Contracts; Prenuptial Agreements; Marital Property1. IntroductionWhile there is much scholarly investigation of the financial consequen

4、ces of marital breakdown,1 discussion of the private regulation of such outcomes using marriage contracts is less systematic. The topic of marital contracting to alter the divorce entitlements of the parties receives, fo

5、r example, only brief comments in the standard surveys of the economics of the family offered by Becker (1991), Bergstrom (1996; 1997), Cabrillo (1999), Cigno (1991), Ermisch (1993), Grossbard-Shechtman (1993), Pollak (1

6、985) and Weiss (1997). Empirically, the most frequent type of marital contract in common law jurisdictions is the ex post separation agreement drafted following marriage breakdown. Such post-marital separation agreements

7、 are typically preferred to a judicially determined divorce settlement both by divorcing couples (Farmer and Tiefenthaler, 2001) and by courts which rarely set aside privately negotiated solutions. Less numerous are ex a

8、nte separation agreements, comprising both prenuptial contracts written prior to marriage and those negotiated during a continuing marriage. Ex post separation agreements, signed at divorce, are relatively uncontroversia

9、l and have less analytically interesting characteristics than marital contracts nego- tiated either as a condition of the wedding or during an on-going marriage. The difference in theoretical significance arises because,

10、 in the case of ex post separa- tion agreements, execution and enforcement are almost contemporaneous whereas marital contracts require contingent contracting over a possibly distant and uncertain future event. The conse

11、quence is that marriage contracts involve issues of renegotiation and signalling, as well as the bargaining problems that also0950-0804/03/02 0201–25 JOURNAL OF ECONOMIC SURVEYS Vol. 17, No. 2 # Blackwell Publishing Ltd.

12、 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main St., Malden, MA 02148, USA.equitable for a high proportion of cases. A legal regime characterized by judicial discretion, while accommodating marital heterogen

13、eity to some extent, introduces uncertainty over adjudication and may promote litigation. One response to the greater variety of marital circumstances, to more wide- spread awareness of the bitterness of adversarial divo

14、rce conflicts, and to higher financial stakes on divorce is the growth in demand for private ordering through marital contracts specifying post-dissolution entitlements. For (prospective) spouses, the private negotiation

15、 and individualized tailoring of divorce conse- quences according to circumstances and preferences may generate efficiency gains. For example, to the extent that relatively easy access to clean break, no-fault divorce ha

16、s attenuated incentives to invest in marriage, couples can protect marriage-specific capital by customizing support obligations (Dnes, 2000). In addition, couples may value the freedom privately to order their financial

17、affairs rather than having judicial solutions coercively imposed by the state, permitting amicable determination of property rights prior to or during marriage rather than litigiously in divorce proceedings (Grossbard-Sh

18、echtman and Lemennicier, 1999). Indeed, there is some evidence that negotiating a divorce settlement without legal intervention promotes compliance (Peters et al, 1993). On the supply side, Allen (1990) has argued that t

19、he state permits private marital contracting instead of imposing its uniform marriage contract when the benefits from flexibility exceed the judicial costs of using third party sanctions to ensure economic justice. Conte

20、mporary moves towards the contractualization of marriage, in which parties define their own relationship terms, is the corollary of its increasing conceptualization in terms of rights to property. Bell (1997) argues from

21、 an anthropological perspective that marriage traditionally conferred rights on a husband of sexual access to his wife. However, innovations in female contra- ceptive technology and the legalization of abortion have give

22、n greater sexual and reproductive autonomy to women. Marriage is no longer defined so much in terms of sexual rights but rather in terms of economic rights and consequences. It is distinguished from non-marital cohabitat

23、ion by its implications for property division, pension, housing, fiscal and inheritance benefits, as well as by greater entry and exit costs. This is true even in countries such as Sweden which seek neutral treatment of

24、different family forms. Swedish law typically treats nearly all spousal property as marital, to be pooled and divided equally on divorce, whereas that of cohabitants is treated as separate property (Bradley, 1996). Insof

25、ar as the institution of marriage is conceived primarily in terms of financial effects, this will naturally lend itself to private contracting. Moreover, many legal commentators have noted a retreat from the regulation o

26、f marriage in family law, creating a climate favourable to marital contracting. In particular, the focus is shifting from the legal obligations of partners to those of parents (Carbone, 2000). The move from partners to p

27、arents is evident in the advent of the clean break philosophy that severs spousal financial responsibilities in the divorce settlement but strictly enforces continuing child support payments. The trend towards the privat