AUTHOR SPEAKING: Rorick Tovar Galvan

AUTHORS SPEAKING: Rorick Tovar Galvan

The book talks about marriage from an economic perspective. We know marriage is a contract, but could you please remind us of the main rights and obligations?

Well, that is a tricky question because the legal obligations and rights of spouses depend on the particular law governing the relationship. Perhaps, in the past, the rules used by courts to determine the applicable law were not of major relevance for the average person. However, in the current context where it is increasingly common to move from one jurisdiction to another – keep in mind that about 40 million individuals living in Europe are involved in a marriage linked to at least two different national laws – the question about the law governing the relationship becomes crucial due not only to the different intensity to which the relationship is regulated from country to country, but also due to the existence of a variety of solutions offered by national legal systems to resolve a same issue. Certainty, it is possible to identify certain rights and obligations present in practically all legal systems. There are however immense differences in the condition and costs linked to the fulfilment of this obligations and the exercise of these rights.     

What are the benefits that are achieved only in marriage and not separately?

Men and women, men and men, and women and women can obtain major benefits from each other if they decide to start a close long-term relationship. Companionship for the present and the future, physical and economic protection, sex and – probably the most important – time to raise children are only a few examples. However, if you think about it, in modern societies all these benefits could be achieved without getting married. Thus, in the book I suggest that the main appeal of marriage does not necessarily lie with any of these benefits taken separately, but with the creation of a framework that provides trust to invest more resources (especially of time) at different stages of the relationship and so maximize any of those benefits. As marriage triggers specific consequences in the event of an unexpected termination of the relationship, it allows spouses to calibrate the degree of cooperation and effort invested, as well as to plan their life prudently based on events occurring throughout their life and on the behaviour of the partner before and during their relationship. Certainly, individuals could without getting married agree contractually on certain consequences in case the partner does not deliver certain promises in the term agreed. The marriage, however, offers a finished regulatory package, that does not require the intervention of a legal expert – a lawyer – to be drawn up and whose content is easy to understand as other members of the society are, were or will be at some point in their lives bounded by it. Marriage can be seen as a cheap device that fosters cooperation by inducing both parties to make sizable investments of effort, time and other resources to obtain and maximize benefits that are otherwise difficult – or even impossible – to get without the help of another person.  

What happens when there is no agreement?

The essence of marriage does not lie with the possibility of requesting the intervention of a court to enforce any promise or agreement between spouses. Fundamental issues like fidelity, respect, or equality, despite their importance, are for example outside of the oversight of the authorities – at least in Western countries. The intervention of the court is certainly important, especially when a marital crisis has erupted. People however know that a marriage is much more than a body of legal rules and that law has a supplementary role, as marriage empowers them with non-legal mechanisms to achieve their objectives. On one side, as the meeting of shared objectives depend on manifold tasks to be performed asynchronously, each spouse can give their best – or to do exactly the opposite – when it is their turn to perform a duty. The incentive to cooperate in long term relationships such as marriage lies in knowing that if one of them delivers their promise in the terms agreed upon – or fails to do so – the other can do the same in the future. Marriage creates therefore a dynamic like the one called tit-for-tat by game theorists, which despite its simplicity, is very successful in terms of inducing cooperation. On the other side, unlike a simple cohabitation, marriage is subject to many social conventions that impose duties on the spouses to reinforce cooperation and discourage a breach of core promises. Think for example of a common social gathering and typical questions popping up there such as, “is he/she married?”, “did you remember your wedding anniversary?” or “when does the baby arrive?”. Many social customs and traditions serve as precautionary measures to make a breach of marital duties more difficult, enforce commitments or expedite investments. Individuals know the importance of such mechanisms: the announcement of the engagement, the conclusion of the marriage in a public space, the change of the surname, apprise the whole community of the conclusion of a serious commitment and a change of status. The logic behind all these traditions is not so much warning conspecifics that in case of a transgression of social duties “you will have to deal with me”. Much more than a kind of scent mark, the objective is to announce to the whole group – males and females – that they are empowered to demand a certain behaviour or even enforce social punishments if one spouse attempts to infringe on commonly expected marital obligations when the other partner is not present.

How do marriage law and international and European law coexist?

In the book, I am very critical of the results achieved by the European Union with the harmonization of conflict of law rules in marriage law. Certainly, the entering into force of the international instruments promoted by the European Union represents a significant improvement over the previous situation as they not only grant spouses the possibility to determine by themselves the law governing their relationship, but they also contain specific conflict of laws rules for cases where spouses have not made use of party autonomy. One must however also note that these instruments not only restrict party autonomy unnecessarily and include dissimilar limits and conditions for the enforceability of choice of law agreements; they also use dissimilar approaches for the determination of the applicable law in the absence of a choice of law agreement. Furthermore, under certain circumstances, the default conflict rules undermine legal certainty significantly, and allow one spouse to manipulate the law governing their relationship unilaterally. In this vein, the aim of this book is based on economic theory to present a new approach in the understanding of marriage and marriage law that in turn serves ­– in Europe or elsewhere – to amend the existing conflict of law laws rules to provide greater predictability and congruency in the determination of the applicable law.

 

RORICK TOVAR GALVÁN is a Swiss-Peruvian specialist in private international law with an extensive expertise in comparative law. He obtained a law degree from the University of the Balearic Islands (Spain) and completed an LL.M. degree with honors at the University of Bern before obtaining his PhD from the same university. His doctoral thesis was awarded the distinction summa cum laude. He is admitted to practice law in Spain and Switzerland and works as Research Associate and Lecturer at the University of Bern. His research interests concern conflict of laws, economic analysis of law, contract law and marriage law. 


About the book


Legal Pluralism and Efficiency in Marriage Law


This book presents a comprehensive framework through which to conceptualize marriage from a law and economics perspective. It shows the economic rationale behind substantive marriage law and proposes an efficient conflict of laws system that prioritizes predictability and congruency in the determination of the applicable law.


ISBN 9781839702297
June 2022 | xxx + 284 pp.



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