[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)

1、9300 英文單詞， 英文單詞，5.3 萬(wàn)英文字符，中文 萬(wàn)英文字符，中文 1.6 萬(wàn)字 萬(wàn)字文獻(xiàn)出處： 文獻(xiàn)出處：Smith I. The law and economics of marriage contracts[J]. Journal of economic surveys, 2003, 17(2): 201-225.THE LAW AND ECONOMICS OF MARRIAGE CONTRACTSIan SmithAbs

2、tractGrowth in property ownership has raised the stakes in the distribution of financial assets on divorce. Given high risks of marital failure, this has stimulated the demand for private ordering through enforceable mar

3、riage con- tracts. This paper surveys the existing law and economics literature and legal practice to consider the state of knowledge on the economic theory, scope and limits of written nuptial agreements.Keywords: Marri

4、age Contracts; Prenuptial Agreements; Marital Property1. IntroductionWhile there is much scholarly investigation of the financial consequences of marital breakdown,1 discussion of the private regulation of such outcomes

5、using marriage contracts is less systematic. The topic of marital contracting to alter the divorce entitlements of the parties receives, for example, only brief comments in the standard surveys of the economics of the fa

6、mily offered by Becker (1991), Bergstrom (1996; 1997), Cabrillo (1999), Cigno (1991), Ermisch (1993), Grossbard-Shechtman (1993), Pollak (1985) and Weiss (1997).Empirically, the most frequent type of marital contract in

7、common law jurisdictions is the ex post separation agreement drafted following marriage breakdown. Such post-marital separation agreements are typically preferred to a judicially determined divorce settlement both by di

8、vorcing couples (Farmer and Tiefenthaler, 2001) and by courts which rarely set aside privately negotiated solutions. Less numerous are ex ante separation agreements, comprising both prenuptial contracts written prior to

9、marriage and those negotiated during a continuing marriage.Ex post separation agreements, signed at divorce, are relatively uncontroversial and have less analytically interesting characteristics than marital contracts ne

10、gotiated either as a condition of the wedding or during an on-going marriage. The difference in theoretical significance arises because, in the case of ex post separation agreements, execution and enforcement are almost

11、 contemporaneous whereas marital contracts require contingent contracting over a possibly distant and uncertain future event. The consequence is that marriage contracts involve issues of renegotiation and signalling, as

12、well as the bargaining problems that also arise with post-marital separation agreements. As contracting on separation is well analyzed by Mnookin and Kornhauser (1979) and Trebilcock and Kevshani (1991) it will be largel

13、y ignored in what follows.Contributions outlining the theory and practice of nuptial agreements draw from the literature on law and economics and the economics of contracts.2 Most of the discussion is recent, with only a

14、 few published studies in English prior to Weitzman (1981). As the field is relatively new, and the enforceability of ex ante marriage contracts controversial in some jurisdictions, many of the contributions to the topic

15、 have a distinctly normative as well as analytical flavour. Writers generally favourable to marital contracts include Becker and Becker (1997), Bix (1998), Dnes (2000), Grossbard-Shechtman and Lemennicier (1999), Marston

16、(1997), Rasmusen and Stake (1998), Scott and Scott (1998; 1999), Trebilcock (1999), Trebilcock and Keshvani (1991), Wax (1998), Weitzman (1981) and Younger (1988; 1992). Sceptics include Brinig (2000), Brod (1994), Cohen

17、 (1987; 2002),DiFonzo (2000), Frank (1988), McLellan (1996), Nasheri (1998), Neave own relationship terms, is the corollary of its increasing conceptualization in terms of rights to property. Bell (1997) argues from an a

18、nthropological perspective that marriage traditionally conferred rights on a husband of sexual access to his wife. However, innovations in female contraceptive technology and the legalization of abortion have given great

19、er 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 cohabitation by

20、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 differe

21、nt 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). Insofar as t

22、he 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 of marria

23、ge 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 parents i

24、s 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 privatization

25、of marriage is also apparent in the modern emphasis on no-fault divorce, and alternative (non-litigious) dispute resolution procedures, such as mediation, to resolve marital conflicts. Observing the increasing self deter

26、mination of obligations, DiFonzo (2000) posits that developed countries are experiencing a transition to variable or customized marriage heralded by le PACS in France and registered partnerships in the Netherlands, Scand

27、inavia and elsewhere. More generally, marriage contracts are consistent with changes in political culture that favour individual autonomy over state- imposed solutions.However, the use of marital agreements is not new. M

28、arriage settlements have historically long been employed by families to protect title to land and the estates of the nobility (Bergstrom, 1994), especially when a wife brought significant property into a marital union (G

29、lendon, 1989). Even in early nineteenth century Quebec, for example, one in every six couples signed prenuptial contracts to change their spousal property rights (Hamilton, 1999). In Iran and most other Islamic societies

30、, the use of marriage agreements has been widely practised since the pre-Islamic period and continues to be so as a means of providing financial protection (‘mahrieh’) to a wife following marriage breakdown (Habibi, 1997

31、). The amount of ‘mahrieh’ is the subject of bargaining by the in-laws and will reflect the wealth and status of the wife’s family. Likewise, in Jewish law, a husband is obliged to provide his wife with a standard writte

32、n marriage contract (a ‘ketubah’) at the time of marriage. This commits him inter alia to the financial maintenance of his wife during the marriage and to paying her a fixed sum of money in the event of divorce (Lieberma

33、nn, 1983).Although in contemporary western countries most married couples have no written agreement, marital contracts are particularly notable in many American jurisdictions. However, it is only since the early 1970s t

34、hat American courts have begun to enforce nuptial agreements providing for the disposition of assets on divorce. Previously, courts were reluctant to enforce contracts that contemplated divorce as this suggested a degree