ABSTRACT
This chapter shows how contractual thinking in both legal doctrine and legal policy contributes to the negative outcomes. In both market relationships and couple relationships (marriage and unmarried cohabitation), services are transferred between two legally independent entities but the similarity stops there. In the market, transactions occur in which one receives nothing without providing something in return. Reciprocity between service and counter-service is the fundamental way of thinking in contract law. This contractual way of thinking, where the parties’ performances are compared and balanced, leaves its mark on the entire private law – including family law. In divorce proceedings in the majority of European countries, property is divided equally according to fixed rules, and the value of inheritance, gifts and premarital assets is excluded from the property subject to division in many of these countries. In England and Wales, Ireland and other common-law countries, the court has discretionary power to divide all property, however defined, on the termination of marriage.
