Contract Based on Mutual Mistake

There is nothing not to love about the Tiger Woods story. Right about now, both he and his wife are likely the most popular people on the planet as chosen by their respective gender populations. There is no man on earth who doesn’t want to be Tiger right now–the best athlete in his sport in the world, a billionaire, married to a swimsuit model, and, it turns out, a man with a bevvy of cocktail waitresses standing at the ready to be summoned to Vegas at his whim.  As for the lovely Mrs. Woods, let she who has not cast a 9 iron in anger into the back of her cheater’s Escalade cast the first stone.

       The legal lesson to be drawn here has nothing to do with cooperating–or not–with a police investigation, domestic violence (sorry, dour ideologues), prescription drug use, or even the value of prenuptial agreements.  Instead, it has everything to do with marriage as a contract based on mutual mistake, and therein lies the lesson to us all. Because there is no doubt that when he got down on bended knee, Tiger’s proposal was likely full of the usual brief but romantic platitudes of the “I love you and want to spend the rest of my life with you, will you be my wife” variety.  Her part was, if any words were spoken at all, likely limited to either “yes” or “I love you.”   

 Not to bring down this Hallmark moment, but marriage is a contract plain and simple. It’s why you get a certificate.  The difference between marriage and living together is, in addition to less nagging by your mother, a set of legal obligations related to property ownership and distribution.  In it’s brevity, Tiger’s proposal–like every man’s–was not nearly explanatory enough.  Because he meant “Be Mrs. Tiger Woods and live in the big house with me when I’m not in Vegas.”   And she thought he said, “Be Mrs. Tigers Woods, and I will forsake all others.”

So let’s replay Tiger’s proposal the way it should have gone:

“Elin. I love you. From the moment I saw your beautiful smile I knew that I wanted to be married to you for the rest of my life.  To me, that means that you will be the only Mrs. Tiger Woods.  You will live a giant house with me and have every material comfort you desire. We will have beautiful babies together.  And we will fight, as all couples do, about whose parents we spend Thanksgiving with, why I can’t figure out how to use a hamper, and what color we should paint the entry hall.  But we will not fight about my jaunts to Vegas. Because let me make this perfectly clear:  I was a total geek in high school.  I studied and that got me into Stanford. And I played golf, and that ultimately made me a billion dollars, a part of which I will share with you. But what it did not get me was any pussy because golf used to be a sport reserved for middle aged white men in pom pom caps and argyle socks until I came around and made it cool.  And now that I did, I am going to make up for lost time. Don’t get me wrong, there is no Vegas cocktail waitress that I want to raise kids with, spend weekends out of bed with, or sit in a rocking chair on the porch of the old age home with. Those priveleges will be reserved solely for you.  But you gotta know that those Vegas cocktail waitresses will get a few hours of my time, and I will hit that.  This is what I mean when I say, please marry me.  If you say “yes” or “I love you” or nod your head vigorously, then please take this ring and be my wife. But if this is not the deal you have in mind, put down my golf clubs and keep the 9 iron away from my Escalade.”

So I argue for a far less romantic but ultimately much more sound form of full proposal disclosure. The one where he says: You’ll be the only Mrs. Smith, but I am not going to go blind.  So please don’t gain 50 pounds and stop desiring me because I will find someone who will.  And the one where she responds: I love our active life together. If, two years into this marriage to which you refer, you should find your one hand on the remote and the other in your pants from 5 pm every  Friday to 9 am every Monday, that’s not going to cut it.”  Hallmark will still make its money on Valentine’s Day, when we all pretend that we don’t know each other as well as we actually do.  But if it cuts into the divorce lawyers’ money, so be it.  Too late for Tiger, but there’s still hope for you…

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