"Since the same sex marriage issue emerged courts and commentators have considered the various incidents of marriage that recognition of same sex marriage might entail. As the Vermont supreme court said in Baker, "the marriage laws transform a private agreement into a source of significant public benefits and protections." However, marriage is more contractible than might first appear ...
All of the above categories except numbers 1, 2, 12, 13 and 14 are generally comparable to contractual rights, even if not strictly controlled by contract under current law. As discussed above regarding covenant marriage, the spouses can broadly contract for divorce rights, including spousal support, property division and liquidated damages, and might even be able to affect custody by contract. They can, of course, sue to enforce these rights. They can also contract for many inheritance rights or obviate these rights by inter vivos gifts. Although they may not get an automatic name change from marriage, they can petition for change of name. Finally, in addition to these rights are others explicitly available by contract, including employee benefits such as group insurance."Calling A Truce In The Marriage Wars F.H. Buckley & Larry E. Ribstein, Page 41 C. Unbundling Marriage
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