Marriage – take the toy away from the (girls and) boys

In a comment on my previous post on Gay Marriage, The Rabbit has said:

“My own idea is not that gay marriage should be allowed, but rather there should be no legal (as opposed to religious) recognition of marriage whatsoever. — A buyer beware approach.”

In my previous post I said that I support gay marriage because this was necessary to give gay etc people equality, or to put it another way, because the state has no business preferring heterosexual unions over other unions.  Obviously, my view assumed the existence of de jure marriage: if there were no de jure marriage for anyone, then there would be no need to extend de jure marriage to others.

I’m intrigued however by The Rabbit’s statement that this would correspond with a “buyer beware” approach.  This suggests to me that The Rabbit is focussing on marriage as a kind of contract between the parties to the marriage, and hence the rights that it confers on each party against the other.

The first point to make is that, so far as marriage is thought of as conferring any obligations of continued love and faithfulness (or at least allegiance to the marriage) ’til death us do part,’ that is not really part of the modern Australian law of marriage.  That is because marriages can now be brought to an end on a “no fault” basis.  In this regard, de facto and de jure marriages are all “buyer beware” relationships.  Another way of putting this is that they are necessarily relationships of trust. This has an inbuilt irony in it – the quality of trust arises precisely because, in many circumstances, trust is all you have, but it is also fair to say that people in relationships, even if from time to time they are jealous or suspicious, frequently do trust each other.  One aspect of this is that they exchange services and property and contribute to property other than on what Richard Posner calls the “spot market.”

So, if a relationship comes to an end, how can an account be taken of all of this?  Should (as The Rabbit seems to be suggesting) the losses just lie where they fall?  Whoever owns what could just take that with them, and any jointly owned assets could be divided according to the financial contributions made towards their acquisition, even assisted, if necessary, by presumptions based on financial contributions made during the relationship generally.  It was in response to what was seen to be the inadequacy of this approach, particularly in relation to women who had contributed non-financially as homemakers and in raising children that the de facto relationship legislation was first introduced. That legislation has since been extended to apply to a wider range of relationships, including gay and lesbian de facto relationships (in NSW it was then renamed the “Property (Relationships) Act”).

There remains a distinction between de facto relationships and marriages.  Although the courts can sometimes take a pretty liberal view of the value of non-financial contributions in de facto and other “domestic” relationships, the division of assets which the courts undertake is still based on the respective contributions of the parties.  Marriage, however, confers on each spouse a right to maintenance by the other, now contained in section 72 of the Family Law Act, which states (in part):

A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately

That is the real “till death do us part” part of the story, even though it is hedged by the conditions of reasonable ability of one party and the inability of the other party to support himself or herself adequately (though “adequately” does not mean “barely” – it means, so far as is possible, at the standard of living enjoyed during the marriage). The court can make maintenance orders, and it can also take into account the same factors which it could take into account in making maintenance orders when it determines a property settlement.

So the position at present is that heterosexual couples can choose to sign up for this extra aspect of a relationship by marrying, or they can confine themselves to property remedies on breakdown of the relationship on an extended but at least notionally contributory basis.

This aspect of marriage principally confers a benefit on a partner who, at the end of the relationship, would otherwise have an ongoing capacity to support his or herself which is less than if they were still in the relationship. It is not surprising then, that many people who are in de facto relationships decide to marry at the point where they decide to or start to have children. This generally protects the wife, because having children has a negative impact on the future employment prospects of the principal carer, who is usually the mother. It also protects the poorer party or the one whose career prospects are given up for the sake of the other’s.

People could probably just sign a contract to the same effect as section 72 of the Family Law Act, but that presupposes that this step is taken in a calculated and conscious way. Marriage offers the package wrapped about with the romance, which actually serves a protective function – at least to the one who is likely to benefit from spousal support.

(It is telling that marriage rates amongst the poor are significantly lower than amongst the prosperous. In such cases, the woman will often be better off relying on the state if necessary or by concealing the relationship if possible whilst she is raising any children, and the man is unlikely to be able to support her any better than she can support herself if the relationship comes to an end.)

The other distinctive feature which marriage offers as between the parties to the marriage is its instant conclusiveness (subject to the risk of undisclosed prior marriages), whereas the existence of a de facto relationship or its duration (in most cases there is a threshold requirement of duration) will need to be established and might well be contested by the other party when a disputed property settlement arises. This is really the same advantage which arises in dealings with the state where marriage or a relationship need to be established.

I’ve gone down a very deep rabbit hole here (unintentional pun but I’ll leave it). I haven’t even got round to the vexed question of polygamous relationships or anything that Jim Belshaw has said in reply to my previous post, for which my apologies. (I don’t really think our disagreements are so great – it’s more a matter of means than ends.)

Tentatively, though, my view is that, even if the state got out of the marriage game, there are still reasons for it to be involved in a system for enabling people to establish civil unions which would amount to practically the same thing. If marriages were abolished at law, we would probably end up just calling such unions marriages anyway, just as now, whatever their theological reservations, Roman Catholics don’t generally go round disparaging the marital status of those married outside the church.

There is also the question of what status should be accorded to those who are already married, as well as the unresolved injustice to those who, if they could have been, would have been already married, but who could now “only” enter into civil unions. Quite frankly, I think we might as well just bite the bullet and introduce gay and lesbian (etc) marriage. I also suspect that, if faced with the prospect of only having, so far as law is concerned, civil unions in the future for the sake of the integrity of hitherto heterosexual “marriage,” a lot of would-be brides-to-be would agree with me.

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