Volume 18, Issue 2

Contract is one of the key tools liberal law employs in the service of its core mission of enhancing people’s autonomy, and choice theory conceptualizes this task as contract’s telos. It thus prescribes three principles – proactive facilitation, regard for the future self, and relational justice – for guiding the legal constitution of contract law in all spheres of human interaction. Spousal contracts are no exception. Thus, the law governing intimate agreements both allows people to adjust the default rules governing their marital estates and provides people off-the-shelf options for structuring their interpersonal interaction as spouses. In turn, the law of marital contracts ensures that free exit from marriage is, as it should be, immutable. Finally, relational justice guides, albeit still imperfectly, both law’s normative defaults for marital contracts and the rules that govern premarital, marital, and cohabitation agreements.

This paper is concerned with the interaction between the principle of equal treatment and non-disclosure agreements in English law. The common use of non-disclosure agreements (also referred to as ‘confidentiality clauses’ or ‘gagging clauses’) as a term in contracts settling possible claims in which harassment or discrimination were alleged came to public prominence in England following the #MeToo movement. There has, though, been little consideration of the enforceability of these non-disclosure agreements as a matter of contract law and the impact of non-disclosure agreements upon equality. This paper examines the legal enforceability of these agreements as a matter of English contract law. It is argued that non-disclosure agreements, designed to obtain silence, work to impede the equality of women. English contract law provides few protections from the potential abuse that can arise from non-disclosure agreements.

This paper presents the findings, theoretical assessments and proposals made by the Commission on European Family Law in its Principles on European Family law in connection to agreements in family matters. It discusses, in particular, whether proposals were made on the basis of the common core of the jurisdictions surveyed or rely on a better law approach.

This Article uses the term patriarchal bargain in order to analyze spousal agreements. In her canonical article Deniz Kandiyoti has coined the term patriarchal bargain in order to describe how women negotiate with patriarchy and strategize under the constraints of male domination. Her seminal work has been highly influential in sociology and gender studies. However, legal scholarship has paid little attention to her work. This Article seeks to bridge this gap and explores how women bargain in the shadow of patriarchy. Using a European courts’ decision as an example, this article adds the patriarchal context of spousal agreements. This social context enriches our understanding of spousal agreements and deepens our understanding of contracting under conditions of social inequalities.