Families by Agreement: Navigating Choice, Tradition, and Law, Brian Bix

Already renowned for his rich and extensive work on the intersection of agreements and family law, Brian Bix’s latest book Families by Agreement builds upon his previous work to offer a fresh take on the increasing legal recognition of private ordering in family law. While the book focuses on the legal landscape in the USA, the bigger questions confronted in this book make it a valuable resource for anyone interested in the law’s recognition and enforcement of agreements in the family context. Bix deals with difficult conceptual questions that have longoccupied family lawyers, such as whether agreements should be given special treatment when they are made in the family sphere.¹ The book is also comprehensive; far from focusing solely on what is perhaps the most obvious example of private ordering – premarital agreements² – Bix takes the reader on a ‘tour of agreements in family law’.³ Chapters are organized thematically (marriage, during marriage, divorce, parentage, etc.) rather than by type of agreement, which enables Bix to compare, contrast, and challenge the state’s regulation of family agreements more broadly. His analysis encompasses surrogacy agreements, donor parental agreements, open adoption agreements, family law arbitration, separation agreements, cohabitation agreements, religious marriage agreements, and more. Bix even considers the law’s reluctance to recognize some types of agreement, such as ‘if you pick up the kids, I will get the groceries’.⁴ Thus, this is a book that not only looks at why and how the law intervenes to regulate private agreements but also why in many cases it does not.

The general considerations of Chapter 1 bring to the fore the complexities of considering so many different types of family agreements collectively in one text. Bix masterfully sets out the competing values and tensions at play when the state recognizes or enforces private choices.⁵ The chapter is divided according to factors counselling in favour of family agreements and factors counselling against such enforcement. But this is not set up as a balance sheet for evaluating the advantages versus the disadvantages of private ordering overall, for Bix’s analysis is much more nuanced than this. Rather, these factors help us to understand, in the chapters that follow, precisely why some agreements are enforced routinely by the courts and why others are not. For instance, ‘one size does not fit all’, and so in some cases, the terms set by the state are inappropriate for that family.⁶ Moreover, some families need private ordering because their relationships are not recognized by the state at all (eg, polyamorous families).⁷ Conversely, these considerations also elucidate why the courts might be cautious about enforcing certain types of agreements and/or why some types of agreements have safeguards. For example, there may be concerns about protecting third parties, or parties’ vulnerability, or the coercion of one party over another. The factors chosen by Bix reveal the intractable difficulties these agreements can pose. It is noteworthy that he avoids listing autonomy as a factor in counselling in favour of family agreements. Instead, Bix subtly unpacks the complexity of autonomy throughout his analysis, exploring how bounded rationality and divisive negotiations impact the way in which agreements are reached.⁸ This produces a much deeper understanding of agreements than the simplified statements about autonomy that sometimes can be used to rationalize the enforcement of agreements under the law.⁹ Finally, the competing factors discussed in Chapter 1 can be irreconcilable, and as Bix observes, these factors bring into sharp focus the limits of the law. As he has put it, ‘one must focus both on what we want the law to accomplish in these areas, and on…what law can accomplish’.¹⁰

The title ‘marriage’ for Chapter 2 is ostensibly misleading since a substantial portion of this chapter is devoted to how different States in the USA recognize (or refuse to recognize¹¹) cohabitation agreements and palimony (the division of assets between unmarried parties). However, in Bix’s overview, it is immediately clear that the chapter is not about the parties’ decision to marry under the law per se, but rather how the state navigates other features of marriage at the point of entry, including the decision not to marry. The chapter encapsulates common law marriage (authorized in a small fraction of States¹²), breach of promise (which, interestingly, is an action still nominally available in a minority of States¹³), the role of premarital agreements in setting the terms of the marriage (including evaluation of the Uniform Premarital and Marital Agreement Act), religious marriage agreements (such as mahr provisions and ketubah agreements), and covenant marriage (the option to enter a more binding form of marriage, whereby divorce is more difficult to access, offered in Louisiana, Arizona, and Arkansas). What unites all of these apparently disparate forms of agreement is that each – theoretically – enables different couples to determine the terms on which they will marry, while the state’s recognition and enforcement of such agreements hinges upon protecting third parties and other vulnerable parties¹⁴; a thread stitched throughout Bix’s analysis in the chapters that follow.

Chapter 3 turns to agreements within marriage: the everyday negotiations within families about household tasks, care, and finances. As Bix states, ‘such agreements are common, but in the category of legally enforceable agreements, they are actually rare’.¹⁵ Postnuptial agreements – here called ‘marital agreements’ – are included in these rare examples, whereby parties enter an agreement during the marriage but before separation to determine the division of assets in the event of divorce. While the spirit of marital agreements is familiar to family lawyers outside the USA, reconciliation agreements as a subcategory of marital agreements are perhaps less so. As Bix explains, reconciliation agreements can operate in a transactional manner: the marriage is on the brink of collapse because one spouse has ‘wronged’ the other, and in exchange for making the marriage work, the wronged spouse receives a better deal in their partner’s will (or, if the marriage subsequently dissolves, divorce). This type of agreement reveals a quirk in the law, which in most circumstances is reluctant to enforce agreements based upon behaviour and fault. As Bix shows throughout his analysis, such agreements tend to be exceptional because the adjudication of ‘marital misbehaviour’ is associated historically with the problems of fault-only divorce.¹⁶

The range of agreements that enable parties to negotiate privately the terms of their divorce are considered in Chapter 4. Here, a key theme of the book resurfaces: the balance between the couple’s power to determine, for example, the division of assets in separation agreements, and the need for the courts to retain some level of discretion to achieve justice. There are limits on the ability to bind the courts through agreement. As Bix explains, the court’s power cannot be ousted in matters relating to children of the marriage (such as child support). Yet, the ability for parties to negotiate the terms of their own divorce is far from narrowly constrained by the court and is remarkably different now in the modern system ‘which basically allows divorce on demand’.¹⁷ The reflections in this chapter will be of interest to those in jurisdictions such as England and Wales, where with the recent removal of fault from the divorce process,¹⁸ Bix’s analogy can also be drawn that ‘state-provided divorce is not that different from privately agreed divorce’.¹⁹

The context of family agreements shifts again in Chapter 5 to consider agreements about parentage. As Bix explains, these are not agreements on how to parent, but rather are about who will be counted as parents by law.²⁰ In an era of fast-paced developments in reproductive technology, Bix’s insights into agreements in this context are especially valuable. This chapter discusses surrogacy agreements, donor parental agreements, co-parenting agreements, functional, or equitable parent doctrines [whereby individuals cannot create parental rights by express agreement but can obtain parental rights and duties based on fairness and because they have functioned within that status (eg, de facto parent)], agreements to waive parental rights and duties, and voluntary acknowledgements of parentage. When evaluating these agreements, Bix returns to the factors considered in Chapter 1, such as how concerns about commodification (particularly in relation to surrogacy) and third parties (ie, children of the family) are to be balanced alongside the use of agreements to resolve difficult questions in unique cases.

Adoption is not typically associated with private agreements, given the weight of the state’s role in the process. But one of the ways in which public family law has been transformed in recent decades is the increased emphasis in many jurisdictions on open adoption – which involves cooperation between the birth parents and adoptive parents – in contrast with a system that historically closed the birth parents out of the process.²¹ As Bix has noted, ‘the amount of private ordering permitted in the adoption process has increased significantly’ and much of this has to do with the fact that most modern adoptions involve input from both parents.²² Thus, Bix’s evaluation of different types of adoption agreements in Chapter 6 reveals another facet of private agreements, where there is much to be learned from studying how such agreements are regarded by the law in a context where the best interests of the child must be prioritized.

In the final substantive chapter, Bix turns to consider agreements about processes, such as arbitration. It makes sense to consider arbitration in a separate chapter since the outcome of arbitration is determined by a neutral third party rather than the parties themselves. Thus, the private agreement in this context is the agreement to seek arbitration in the first place. Arbitration is particularly interesting in relation to the central question considered by Bix in his introduction: whether family agreements deserve special consideration because of the context in which they are made. Indeed, as Bix explains, arbitration is commonly used in the public and commercial sphere, and so when applied to families, there are concerns about whether such agreements deprive the parties of consent or provide properly for vulnerable parties. The second half of Chapter 7 discusses collaborative divorce and finally agreements affecting access to court. Collaborative divorce involves a different type of agreement; to stick with a collaborative team of lawyers to work towards settlement. If the terms of the divorce cannot be settled, then the agreement has been breached and the process of collaborative divorce must be restarted or abandoned. These examples of agreement are all interesting because, as Bix observes, there seems to be ‘less reason to be worried about agreements affecting process’.²³ But this assumption is challenged precisely and succinctly throughout this chapter. There are important pitfalls within such agreements that should not be overlooked.

Bix is to be congratulated for writing a book that explores a broad range of agreements made in so many different contexts with such depth and precision. It is no mean feat addressing questions about the law and its limits when looking at surrogacy, adoption, and premarital agreements side by side, which as Bix has shown, require such a plurality of approaches that the boundaries of family law itself are stretched. His assessment also reminds the reader of the irony of the legal recognition and regulation of private ordering: ‘When law authorizes the parties to set or alter their legal rights and duties, it is sometimes as part of an admission that individuals may know better than the state how to structure domestic relationships’.²⁴

Across many different jurisdictions, family lawyers are grappling with the question of whether private ordering should be permitted in the family sphere. But by zooming out of family agreements to identify the common factors affecting their enforcement or non-enforcement, Bix shows that many of the problems with family agreements are problems with private ordering more generally. Thus, an important lesson to take from this book is not to make assumptions about family agreements simply because they are made within the family, but instead to reflect more deeply on what is being agreed upon and why.

Footnotes