This Article explores the historical and modern role of marital agency law in defining a critical aspect of what it means to be married -- the scope of spouses' imputed liability for each other to third parties. Part II explains how the emergence in the nineteenth century of married women's legal capacity was driven in part by demand for a reliable legal mechanism to shield assets invested in marriage from the claims of husbands' creditors. Part III considers the scope of marital agency and shared liability under the modern view of marriage as a voluntary partnership among equals, terminable at the will of either. Spouses' financial responsibility for each other to third parties varies widely among jurisdictions. The variety reflects differences in spousal property rights among marital community and non-community property regimes. It also reveals the absence of a consistent theory of the scope of shared risk and reward relative to spouses' individuality within marriage. Part IV offers an explanation for the persistent complexity of the law governing creditors' rights against married people. Even in the context of divorce, in which the partnership metaphor is most robust, we lack consensus on the legal effect of marriage on a couple's legal relationship with each other. This void complicates not only divorce but also the related question of the scope of spouses' shared responsibility to third party creditors during their marriage. Despite the daunting complexity of marital agency law, it is a mirror of judicial and legislative attitudes about the balance between public and private regulation of intimate relationships. And, it is an undeniably powerful instrument of social policy.
Marie T. Reilly,
In Good Times and in Debt: The Evolution of Marital Agency and the Meaning of Marriage,
87 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol87/iss2/2