The Unnecessary Doctrine of Necessaries

This Note argues that neither the traditional nor the modem necessaries doctrines are justifiable in contemporary society. Part I investigates the practical effects of both the traditional and contemporary necessaries doctrines and demonstrates that neither is an effective mechanism for providing support to a needy spouse. While a more successful support remedy might be devised to replace modem and traditional versions of the necessaries rule, Part II shows that yet another reformulation would not be worthwhile because the theoretical underpinnings of the doctrine are faulty. There is no persuasive evidence to establish the existence of the narrow support problem the necessaries rule was designed to alleviate, or of creditors’ need for extra protection from married debtors, or of the efficacy of the doctrine as a means of preserving the fisc and promoting stable marriages. This failure of the doctrine’s underlying assumptions, combined with the significant interest modem couples have in structuring their own financial arrangements, argues for abolition of the doctrine. Part III suggests that even if the doctrine of necessaries is eliminated, a nonspecific, nonenforceable legal support duty should be maintained.