Relational Contract and Other Models of Marriage

Abstract

This article proposes relational contract as a model for analyzing marriage under Canadian law. In contrast, in Bracklow v. Bracklow, the Supreme Court of Canada recognized two "competing" models of marriage and three models of spousal support. The difficult policy issues in the law of spousal support relate not to a tension between different models but instead go to compensation, including reliance and expectations. This article uses relational contract to critique Bracklow, considering the challenges in defining models. The Court's basic social obligation model and its non-compensatory support are unjustifiably broad, and its compensatory support is too narrow. In assessing the extent to which competing models give couples flexibility in customizing their relationships, the article discerns in Bracklow the emergence of new notions of public order in the sphere of marriage and a sense of not only procedural, but also substantive, justice.

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