[WHM] Till death do us part

I was intrigued by this article by David Allen Green on marriage. I happen to agree with Mr. Green on this: marriage is a legal and economic contract and love and romance only get in the way of that. Far too many people say “I do” without really understanding the legal and financial implications. Yet, when I once casually inquired of my solicitor what those implications were, he looked at me like I’d grown a second head.
Historically, marriage has been an extremely important social and economic institution, and one that has had an enormous impact on the social status of women. So I’d like to have a look today at marriage through the ages within the Western/Judeo-Christian context.
Marriage as a legal and economic contract:
I feel like stating the obvious here, but it is surprising how many people don’t realise the full legal and financial implications, and the simple fact that marriage is, above all, a legal and economic contract. Even some of our most “romantic” customs today have evolved from economic necessity. Engagement rings, for instance, date back to Germanic tribes, where they were a downpayment on the bride price the groom paid the bride’s family. Another good example is how marriage custom changes with economic conditions. Early Jewish law as captured in Deuteronomy makes levirate marriage (where a brother has to marry his deceased brother’s widow) compulsory, while later writers (Leviticus) prohibit it.
For the majority of our history, marriage has been a way of regulating property rights, over money, land, but also children. Modern tendencies to grant custody of children to the mother are actually an innovation – historically custody defaulted to the father. This also explains the historical importance placed on a bride’s virginity, as it provided a measure of certainty of paternity.
Hendrik Hartog points us to the concept of “coverture” – the idea that in legal terms a husband spoke for his wife who couldn’t, for instance, own property in her own right. This arrangement makes marriage through the ages unequal by definition. Only in the last couple of hundred years have we moved, slowly, towards an understanding of marriage as a contract between legal equals.
The rise of romantic love in marriage:
The ideas of love and marriage were for a very long time seen as incompatible. Through the middle ages in Europe, marriages tended to be arranged by families, often without even a meeting between the bride and groom before the wedding. A good illustration of the emergence of romantic love is Sir Thomas Malory’s Le Morte D’Arthur – a 15th-century retelling of older English and French tales about, among others, King Arthur. The book includes both the story of the love triangle between King Arthur, Sir Lancelot and Guinevere, and the much older tale of Tristan and Isolde.
Superficially, the stories are similar: queen falls in love with knight who is not her husband. The main difference, which hints at the difference in period of origin, is that there is no meaningful relationship at all between Isolde and her husband King Mark. Guinevere, on the other hand, genuinely loves both Arthur and Lancelot.
While even into last century marriage was the only legal expression of sexuality, there have been periods, notably the 12th century, when a strong belief was held that love was impossible in marriage and could only be found in adultery. The idea that love and marriage actually go together is much more recent.
Hartog argues (in a US context which, however, is largely also reapplicable to Western Europe) that over the last 200 years we have seen the gradual evolution of marriage into an expression of an individual’s right to happiness.
When researching this post, one of the things I found most surprising was the varied history of divorce. I expected that divorce wouldn’t really come onto the scene until the 20th century (unless of course you were Henry VIII). And while in many cultures – for instance ancient Israel – divorce was frowned upon or prohibited, it was quite common for the Romans. There were even periods in Roman history when husband and wife could divorce by mutual agreement – something which has yet to return to all of Europe. In the post-Roman period and early middle ages, marriage was often still seen as a civil legal contract. It was not until the 12th century that the Christian church began to extend its influence and marriage became a sacrament. It was due to these changes that marriage was declared insoluble except by death. Combined with other factors like coverture, this pretty much put women under mens’ control for their entire lives.
It is only with the recent reframing of marriage as an expression of the right to happiness and as a contract between two equals that divorce has really started being relevant again, and that we have made any progress in divorce legislation. Initial progress was the legalisation of divorce when one party was at fault, e.g. through infidelity or other acts deemed “incompatible with the marriage”. No-fault divorce is still not available in many countries around the world. Even in the US, it was not available in the state of New York until 2010.
Same-sex marriage:
Strangely enough, it is only when we start looking at same-sex marriage that the oppressive effects of historical, “traditional” marriage on women become really apparent. I was struck by a recent post on Conservative Home which claimed the Britain has the most “anti-family” tax system in Europe. When you look at how this is calculated, it becomes apparent that the implied Conservative definition of “family” is a unit of one man who goes out to work, one woman who stays at home and two kids. When traditional, segregated gender roles are so deeply embedded in your world view it is not surprising that [c/C]onservatives find it difficult to deal with families where both partners are of the same sex. Ask any gay couple and they will tell you of the countless times someone has asked them “So which one of you is the man and which the woman?” It is this expectation of gender roles which is damaging to women and LGBT people alike. For a slightly satirical but ultimately very down-to-earth look at gender roles and same-sex marriage, I highly recommend Gay marriage: the database engineering perspective.
The LGBT community has had an inconsistent history when it comes to marriage. Historically, some LGBT people have rejected marriage as an institution, due to the history of oppression it comes with. More recently, marriage equality campaigns have been successful around the world. One of my favourite stats is that until about six months ago there were more countries in the world who executed people for being gay than countries which permitted same-sex marriage. I am incredibly pleased that this has now changed. Ten countries and a few other jurisdictions, including several US states and the Native American Coquille Nation, currently permit same-sex marriage, with several others recognising marriages performed in other countries or having other forms of same-sex civil unions.
Finally, here we are in the 21st century, and while a lot of people still get married – some even to people of their own sex – and some get divorced, a lot of us choose to simply cohabit. If marriage is not about “ownership” of property or children anymore, if it is no longer the only legally sanctioned form of sexual expression, a lot of people simply no longer see a point in it.
Of course, there is still a point. Being recognised as husband and wife or as civil partners by the state confers a whole lot of rights and obligations on you. I am reliably told that the UK Civil Partnership Act was one of the most complex pieces of UK legislation: as the intention was to make civil partnerships equal to marriage, all of the same legal rights, privileges and obligations has to be included – apparently right down to changes in the Abattoirs Act.
Things like being allowed to visit your partner in hospital and make decisions for them if they are incapable of doing so themselves can be hugely important. In case of separation, figuring out how to split property can be a challenge, whether you are married or not, but unmarried women tend to suffer disproportionately financially at the end of a relationship. Every few years someone comes up with the idea that cohabiting couples should be given some rights.
I must admit I am ambivalent about this. We’ve already established that the smart thing to do would be to take independent legal advice before you get married. I don’t particularly want to have to do that before I move in with someone too. As it is, the state already treats my partner and me as married for benefits purposes, so even though he is currently looking for a job, he is not receiving any job seekers’ allowance or any other benefits. I am expected to support him, pretty much regardless of how long we’ve been together for, what the nature of our relationship is, or how long ago we moved in together.
Marriage through the ages is a highly complex subject, and this post has barely scratched the surface. What I hope it has shown is that women have only recently become equal partners in this institution, that the current arrangements around the world vary wildly, especially when it comes to provisions for divorce and same-sex marriage, and that cohabitation, too, comes with its own set of thorny issues. Food for thought as we near the end of Women’s History Month.

4 thoughts on “[WHM] Till death do us part

  1. MarinaS

    I fall down on the side of those who would simultaneously see marriage quietly disappear as a social institution and thing cohabitation should be more regualted & protected by law.
    I’m not sure it’s right to discriminate between different commitments based on nothing but the formality of how they were made. Why should people be allowed to take shared property or childcare obligations less seriously (in the sense of being less bound by the law) just because they chose to not get legally married? The two seem to have no logical connection – a child is a child, a mortgage is a mortgage, shared assets are shared assets.
    As long as cohabiting couples are not protected by law fromt eh effects of acrimonious esparation like married couples are, marriage simply serves as an entry card to a club of relative privilege which excludes non heterosexual, non monogamous people, and also (for different reasons) many working class people.
    In any case, from a strictly legalistic point of view, isn’t there such a thing as an oral contract? Why not acknowledge that having children, sharing a house, buying a car, getting a loan with someone are all serious obligations that need to be thought about & considered individually and one by one?

  2. Milena Popova

    I didn’t go into it in the article as it would have ended up far too long, but my ideal scenario is what I call “pick & mix marriage” – being able to agree and formalise what rights and obligations you agree to share with whom, regardless of gender and number of partners. We’re not quite there yet. 😉
    I do think people should have the option to essentially maintain separate legal identities and financial assets if they want to, as long as that’s what both partners want.
    The most important thing for me is that people make those choices consciously and by mutual agreement.

  3. MarinaS

    I completely agree with your end-game wishes for legal partnering – though I could never before put it so pithily! 🙂 “Pick and Mix Marriage” is officially in my lexicon from now on.
    However, I think in the intermediate period of adjustment we need to recognise that it’s not marriage itself that is an important undertaking – but the things that people traditionally did *within* marriage, like having children and building up mutual assets.
    Maybe what I’m saying is that we should have an opt-out rather than an opt-in system, at least in the near and medium term: everyone should have the option of maintaining a separate legal & financial identity, but they need to actually apply for that in some way, and are legally presumed under certain conditions to have given up that status, unless and until they wish to reassert it.

  4. Milena Popova

    Hm. I think I quite like the idea of an opt-out approach, provided it comes with a lot of education and awareness raising of what being married or cohabiting means. Most people don’t seem to be aware or have those kinds of conversations within their relationship, which terrifies me.


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