Carroll: “Reviving Proxy Marriage”

Andrea Beauchamp Carroll (Louisiana State University, Baton Rouge) has posted Reviving Proxy Marriage, Brooklyn Law Review (forthcoming) on SSRN.  Here is the abstract:

Marriage is merely a contract. It creates myriad rights and responsibilities - essentially conferring a status - but the American states recognize without exception that the parties’ relationship is at base nothing more than a contractual one. Still, modern society has elevated the marriage contract above all others. This distinction has overwhelmingly focused on the very personal nature of the marital relationship, a feature nonexistent in the arms-length contractual dealings with which we are accustomed to working when applying contract law. As a result, marriage is subject to a number of requirements, even at the level of contractual formation, which are unknown to the general law of contract. No contract is subjected to as high an entry requirement - typically a formal ceremony - as is marriage. Moreover, the application of one of the most fundamental doctrines of contract law, namely, that a contracting party need not formally enter into the contractual relationship himself but may instead designate an agent to act on his behalf, is generally viewed as inapplicable to the marital relationship. So-called “proxy marriages,” then, whereby one party authorizes an agent to stand in his stead at the marriage ceremony, are widely disdained in the United States.

Only five American states have recognized otherwise, and nearly all in an exceptionally narrow context involving military personnel. So serious is the contempt for proxy marriage that the doctrine has been rejected throughout most of this country for nearly one hundred years. Elsewhere, proxy marriage is not so abhorred; acceptance of the doctrine is viewed as an equitable necessity throughout much of the world. Indeed, a United Nations Convention studying marriage and its entry requirements identified diverse views on the permissibility of proxy marriage as one of the most globally divisive issues plaguing family law today.

This article argues that the time has come for American states to reevaluate the efficacy and equity of continuing a distinction between marriage and all other contractual relationships to which agency theory may apply. The proliferation of couples (and their children) who stand to benefit from the acceptance of proxy marriage is at an all-time high given rates of military deployment abroad, parties pursuing employment away from home, and the increased number of same sex couples seeking to establish a marital relationship. Each of these groups has a compelling argument for the necessity of proxy marriage, and no other avenue exists for conferring upon them the legal relief they desire. Moreover, agency law has evolved drastically in the last thirty years. Agency theories, once relegated almost exclusively to commercial transactions, now have application to scores of personal dealings. Among other things, one can, only as a result of very recent legal developments, appoint an agent to make end-of-life decisions, appoint an agent to draft a will, even appoint an agent to exercise custody over one’s child. In other words, agency doctrine has permeated the most personal of our relationships, save the marital relationship.

The time has come to reassess our long-standing intolerance of proxy marriage and to stop singling out the marital contract as unworthy of the regime of agency. Creating symmetry in agency law by sanctioning proxy marriage is simply the next logical step in the evolution of agency doctrine as applied to intimate relationships and it is a step that can be taken confidently given the strong foundation of protection that American agency rules already affords principals. In short, agency principles are ripe for application to the contract of marriage, and states should begin to embrace the idea of a proxy marriage - a groomless, perhaps even brideless, wedding.

MR