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Like many people, I got married with surprisingly little understanding that marriage is essentially a financial merger. Unfortunately, this became all too clear when my wife filed for divorce. Although I had made all the payments on the house and had far less debt, I had to buy “her” half of the house from her and ended up being financially broken (but not bankrupt) by this process. Based on my own experience, I agree with William Quiqley’s modest proposal that potential spouses receive a full disclosure of their legal and financial obligations before they have their merger.
His proposal makes excellent sense. After all, people should be aware of their responsibilities when entering into any legally binding arrangement-especially one that involves their entire financial life (or at least a large portion of it). While people are supposed to know about what they are getting into and everyone has heard the horror stories about divorces, it seems that most people do not fully understand the legal aspects of marriage and it is clearly remiss that the state grants licenses without providing such information.
Interestingly, Mexico City law makers have proposed a bill intended to address the court clogging legal battles between divorcing couples. This bill would require couples to create a pre-nuptual agreement that would create a contract specifying what would occur if the couple divorces. This would include financial matters as well as issues regarding children. The intent is, of course, to reduce the burden on the courts and allow divorces to be settled quickly. Since the divorce rate about 40%, this certainly makes sense. It also makes sense because the couple would know what their exact obligations will be and they will not be going into a serious financial contract blindly.
One rather controversial aspect of the proposal is that the marriages are supposed to have predicted timed of termination. Couples can, of course, use the traditional termination: “until death do us part” or they can opt for a shorter contract. Since other financial contracts can have termination dates, this seems sensible enough. Not surprisingly, the Catholic Church in Mexico is outraged by this. However, they have little moral authority from which to argue and the reasons in favor of the bill seem far more compelling than the usual vague appeals to God and family values. After all, it hardly seems to enhance family values to have brutal legal battles over divorces.
The bill also requires couples to take classes about marriage. This also makes sense. After all, people are required to learn how to drive before getting a driver’s license because driving is dangerous. Marriage is also dangerous: as a friend of mine puts it, you have a 50% chance of losing 50% of your stuff. Hence, people should go into that potential disaster with all the preparation they can get.
At this point, someone will probably raise the matter of love and the subject of religion. After all, marriage is supposed to be about love and there is often a religious element.
In regards to love, love has as much to do with the legal aspects of marriage as it has to do with any financial contract: none at all. There is, as people point out, no love test or even a love requirement for marriage. There is often an assumption of love, but this has no bearing in terms of the license. This might seem heartless of me, but you can check into the matter yourself. Lest I be considered a cold beast, let it be known that I think love is great. Like running and friendship, it is one of the great goods in human life. However, people can marry without being in love and people can be in love in every meaningful way without being married.
But, one might say, does not marriage serve to show the ultimate commitment to love? My reply is that people do think this, but marriage is a legal contract that is primarily financial in nature. A person can commit in every emotional way without such a legal merger. But, one might say, how can couples express their love? Well, my obvious reply is that they can treat each other with love and do all those things that show love. In fact, I propose that their be a Love Oath or Union of Love created in which couples can make a (non-financial) bond of love. They can have a ceremony (with cake, of course) and it can even be recognized by the state with a certificate of love. However, it would have no financial or legal aspects to it-it would be pure love.
But, one might cry, what about all the legal rights of marriage? My modest proposal here is actually two proposals. The first is that couples could do the traditional legal marriage with all the legal obligations and rights. My second is that the various legal obligations and rights could be selected and put into a specific contract. It is absurd that the marriage merger is a one size fits all deal when any other contract can be custom made. As such, I propose that a Civil Contract of Union be created that would allow couples to specify the legal aspects of their legal contract. I also contend that many of the rights should be open to non-”married” people. For example, people should be able to designate the people who get to visit them in the hospital. This Civil Contract of Union would satisfy people who marry for the sake of the legal rights and obligations. Naturally, it can be combined with the Union of Love.
Lastly, a religious person might note that nothing has been said about religion and marriage. As I see it, God can sort this out. After all, He is omnipotent so He can make it so marriage works anyway He wants. For example, He could make it so that couples who are not marrying for love are unable to complete their vows or their rings shatter. He could make it so that when same sex couples try to get married, their clothes catch on fire and the wedding cake is consumed by locusts. So, until God says otherwise, we can go with my proposals.
But, one might yell, what about the religious fol? Am I not being a bit of a jerk about this? Surely I cannot be so cynical as to truly believe such things? In reply, I do admit the importance of religion to some people and this should be acknowledged. As such, I propose a third union, the Theological Union. This would be a ceremony designed and conducted by the relevant religious institutions to sanctify unions. It would have no legal status at all (that would require the Civil Contract of Union) but could be given whatever religious significance the religious authorities wished to put into it. They could even make a nifty certificate and there should, of course, be cake. I am sure God likes cake. The Theological Unions also have the advantage that the various religious groups and people who are very worried about traditional marriage can make their Theological Unions as traditional as they like. Since these unions would have no legal weight, those authorizing them can exclude whoever they want and presumably be free of any legal worries (or not, maybe people could sue if a church, for example, banned white people from getting a Theological Union).
I believe that my proposal provides a rational solution to the marriage problem and one that can make everyone unhappy-which is a mark of a good compromise.
You seem to be taking the Kantian position that marriage is a contract, as against the Hegelian idea that it is something more, the subsumption of individual persons into a family (“one flesh”). Is Hegel’s idea not perhaps more like the traditional religious (Christian) idea than your “theological union”, which has no practical effects and thus is essentially meaningless – reflecting your apparently secularising stance.
Practically, I’d say that teaching marriage would be more appropriate in Religious Education classes than most of the bible stories I was taught, as it would explain the Christian idea of love in a way meaningful to the students as it would be related to their experience with their parents. I do agree that their should be classes, but not just directed at self-identified prospective married couples.
I think that there is a social aspect to marriage that is significant. Being married involves, as you said, an extravagant ceremony with cake. It also involves receiving a title (“Mrs” for example). This means that being married is somewhat similar to a status symbol. Whilst a luxury car might symbolize financial expertise, a wedding ring symbolizes romantic or personal expertise.
It is socially ingrained that the phrase “I am Married” means big things whilst “We have a loving commitment” doesn’t have the same power. It has been observed before that much of the reasons that same-sex couples want to get married is for the ‘recognition’ of the ceremony. Marriage is all about an ‘unveiling’ of commitment, a commitment that has become historically linked exclusively to the word ‘marriage’. Weird.
Anyways, I like your suggestions. They seem reasonable.
I don’t see why marriage, as a legal institution, exists.
What’s the point?
People who are religious should seek a religious ceremony.
People who want to sign a joint property contract with someone else should do it.
People who want someone to be their heir should write a will.
Everyone has a legal and ethical duty to support and help raise their children.
I do not see why the state grants licenses for people to marry or why people seek a licence from the state to marry.
Stephen,
From a legal perspective it is just that-a contract. As far as their being something more, such as a metaphysical subsumption, there seems to be no evidence for that. The burden of proof would seem to rest on anyone who claims that there is something metaphysical going on there. Yes, I am in fact sad that I have hit this level of cynicism.
Now, if the subsumption is just a metaphor for the love and so on, than that is fine. However, the love and so on have no sufficient or necessary connection to marriage. People can get married without any of that and they can have all of that without being married (unless one wishes to take that as being marriage).
It is interesting, I think, to consider that second point: that “true” marriage would be love and all that other stuff, regardless of the contract or religious ceremony. An analogy to friendship might fit here.
Andrew,
Good points. As you note, there is certainly social significance to marriage. That might, as you indicate, be considered a social good attached to marriage and one that could be well worth having as a sign of social acceptance and status. An analogy might be drawn (loosely) to the status of being a person.
s.wallerstein,
Perhaps so some people can be denied marriage rights so as to make some sort of point?
Mike:
As long as marriage as a legal institution exists, everyone should have the right to marry.
Marriage is a very old institution, which has been gathering meanings and functions with the millenia: probably, marriages in traditional cultures are alliances between two families or ways of dealing with property disputes.
Then in the 19th century the idea that marriage is about love makes its entry.
In the middle of the 20th century marriage is proclaimed to be about not only love (property is still lurking behind the scenes), but also about good sex and about companionship.
So we have an institution where people (according to my mother and others) are supposed to “marry well”, that is, find someone of a suitable socio-economic status.
Not only does the other person have to be of a suitable socio-economic status, but also there has to be romantic love, romantic love being in my experience one of the most fragile and ephemeral feelings toward another human being.
Not only do we need love, but also sexual chemistry and sexual chemistry depends on such unreliable factors as whether the other person ate garlic at the previous meal or snores at night.
We also need companionship, and in my experience at least companionship is more durable and reliable than love, sexual chemistry and even property (given the current economic crisis).
There is just too much expected of marriage: why spend your whole life searching for someone of a suitable socio-economic status, whom you are in love with, who turns you on sexually and with whom you can have an intelligent conversation?
Those are unrealistic expectations, utopian expectations.
It’s interesting how often Darwin uses the word ‘marriage’ when describing animal behaviour.
Biologically, (erotic) love exists in species whose offspring need the attention of both parents. It is most obvious in flying birds: the egg has to be small enough to fit inside a flightworthy female, yet its contents have to be transformed in a very short time into a flightworthy fledgling. So both parents are required, and male parental investment is as high as female parental investment. But a male mustn’t expend energy on offspring that are not his own. Hence additional “guarantees” are required of the sincerity of the union – such as costly, time-consuming public “ceremonies”, courtship “rituals”, etc.
I’m sure that all sounds familiar. In humans, in our recent evolution, perhaps most of those “guarantees” take the form of property agreements, contacts, etc. But really, there’s much more to marriage than that. Just look at human narrative art. The typical “happy ending” shared by the audience is not “hooray – a contract has been signed!” but instead “hooray – their erotic attachment is mutual and sincere!” Just reflect for a moment how central a human preoccupation this is.
Personally, I think the whole idea of love has been corrupted by bad Cartesian philosophy (I name Descartes, but the blame also rests with Plato and many others). That philosophy sees the mind as a “centre of consciousness” instead of as “what the brain of an evolved animal is doing”. So we tend to see love as a conscious type of “feeling” instead of as a biological state. That way lies tragedy for many.
s.wallerstein,
I agree. Since marriage confers legal rights through a contract, it seems reasonable that any two consenting adults should be able to enter into these contractual obligations and acquire the relevant rights. There seems to be little ground on which to insist that those entering into the contract need to be of different genders (or have any gender at all). Naturally, there are legitimate concerns about people marrying relatives-mainly because of the incest factor. But this would only apply to same-sex marriages that would involve incest (as such, the ban on incest would be consistent).
Marriage does seem to involve unrealistically high expectations. Of course, it does seem to diminish it a bit by looking at in a completely realistic way. Then again, maybe not.
Jeremy,
Well, love could just be a biological state. However, that certainly seems to take the romantic aspects away. For example, saying to someone “My brain is the product of an evolutionary process and it is causing the rest of my body to spend time near your body and to act in ways to enable us to reproduce effectively thus passing on genes to continue in the process of natural selection” might get things right, but does not seem to be love.
That said, perhaps the reductionist account of love is the correct account. This would certainly make breaking up easier: “baby, my brain states have changed because I am an organism that is the result of natural selection” sounds more sophisticated than “it is not you, it is me, baby.”
Hi Mike,
“Well, love could just be a biological state. However, that certainly seems to take the romantic aspects away.”
The word ‘just’ in “just a biological state” suggests that biological states are somehow weaker or less important than “feelings”. Hence your claim that the biological way of looking at it “reduces” it.
But I would argue that the power of love lies in its being nothing less than a biological state. Its being a biological state makes it a matter of life and death — and explains why it drives people to suicide and murder as well as to great acts of kindness and creativity.
I don’t mean to “reduce” love (and marriage) so much as give it due respect. The alternative way of looking at love as “feelings” strikes me as more appropriate for a Hallmark card rather than mighty works of art such as Tristan und Isolde.
Marriages are annulled when the psychological intentions intrinsic to it are absent and that is something separate from divorce. Perhaps the grounds for annulment are relevant to understanding it, contractually or otherwise.
Stephen,
That is a good point. I did not consider annulment in the course of writing this bit.
“Marriages are annulled when the psychological intentions intrinsic to it are absent”
Legally, or in some other sense? That’s not the law where I live!
Mike, I guess this is a sore point with you … but I’m surprised at your surprise.
If people go to the trouble of getting married, it seems to me that they are saying (to each other and the world at large) that they are pooling all their resources, financial and otherwise, to tackle the problems of the world jointly and follow a shared life plan. That’s certainly what I thought I was getting into when I got married.
I could see that presumption being defeated if it could be shown that one person was not acting in good faith, or if they somehow agreed that certain specified resources held by one would be kept separate from the enterprise, or perhaps if the whole thing came to an end very quickly and they never really did act on that basis.
But if two people have gone to the trouble of getting married and have stuck it out for some period of years, each making all sorts of adjustments to his/her plan of life in reliance on the other doing so as well … to contribute to a common, ongoingly negotiated life plan, then it does seem to me reasonable for a court to have, as its starting point, the assumption that each holds his or her financial assets in trust for both of them jointly.
If two (or more!!) people have acted like that, I’d draw that inference if I were sitting as a judge even if they had not gone to the trouble of getting married. It’s not a matter of contract but one of ongoing mutual reliance in shared plan of life. Taking the action of getting married would merely strengthen my conclusion that they had, in effect, taken on a kind of merger of assets. If they’d had children together that would also strengthen my conclusion.
There may be factors requiring adjustments to be made, but that seems like a good starting point for a judge to take, irrespective of what is in the legislation operative in the jurisdiction concerned, and irrespective of whether contract law is applied.
All issues of contract aside, I don’t think it’s surprising that courts think in this way, even in the absence of legislation and even in the absence of formal marriage (for many decades now, courts in the common law world have been invoking notions of resulting trusts and constructive trusts to move in this direction with de facto relationships).
So sure, maybe you’re right that all this should be more generally known. But again I’m surprised at your surprise. If people who actually get married and follow a common, negotiated life plan (with mutual concessions, mutual reliance on the concessions,etc.) don’t think that they are thereby agreeing to pool resources – to hold their individual resources on trust for both – then what are they thinking?
That said, I’m not necessarily opposed to your actual proposals. Indeed, a lot of it would be possible even now in the jurisdictions I’m familiar with. Certainly, married couples should be able to reserve certain assets so they are not pooled. And unmarried people should be able to gain some of the benefits of marriage, including entering into arrangements where all or some resources are agreed to be pooled – I think you’d find that a lot of jurisdictions have legislative schemes these days to facilitate this.
Russell:
You seem to think that when two people get married, they are basically starting a business partnership.
It’s true that on one level they are starting a business partnership and they should realize that.
However, most people get married because they are wildly in love and love is blind. People who are wildly in love do not see the probable future problems in shared property arrangements nor do they often even think about them.
Should they think about them?
Yes.
However, let’s remember that most people get married fairly young, with very little life experience and once again, blinded by love.
Marriage is generally a social signal that two people are together and forsake all others forever. i.e. They are not in a sane state of mind. This is not the situation you want to be in when you make a commitment of half your current and future finances.
Marriage should be allowed as a social signal, but it should have absolutely no legal or financial standing. Should people wish to entangle their finances, either before, during or after this point, then there should be standardised legal documentation (that can be customised) to allow them to do so. Similarly for all the other legal issues that magically go away when you’re married: visitation rights; inheritance; financial, legal and medical proxy; etc.
As a simply legal arrangement there is nothing that should limit the institution of marriage to one man and one woman, any number of consenting adults should be able to get involved and I find Mike’s blase dismissal of the rights of related people to enter into through some misguided fear of incest to be quite bigoted.
If it’s a legal-only arrangement there is nothing to stop incestuous people entering into it – even with our currently misguided legal system the ban on sexual acts between relations could continue while allowing relatives to share resources within a legally protected framework.
I think we need to take account of the biological significance of marriage.
The evolutionary “purpose” of both love and marriage is to promote the successful rearing of offspring. Consider an analogy: two couriers have to carry a valuable package across a mountain range. One strategy is to tie themselves together with a rope. The rope can work as a life-saver if one falls, but it can be an additional danger to one who doesn’t fall. Whatever about the pros and cons of this arrangement to the individuals who adopt it – and it is surely a “con” for anyone to get dragged over the side of a mountain – statistically the package is more likely to make it across the mountain range if a rope is used.
Love is blind for a reason: the durability of the erotic pair bond – like the parental bond – requires a certain “unconditionality”. These ropes have to hold.
From an ideal biological perspective (i.e. one in which everything is “working properly”) parents notice and correct their children’s transgressions, but overlook such shortcomings as lack of intelligence. And from the same perspective, erotic lovers notice and correct each other’s lack of exclusiveness, but overlook each other’s less-than-optimum appearance. If love is not blind, it’s probably not genuine love.
Keddaw wrote:
“Marriage should be allowed as a social signal, but it should have absolutely no legal or financial standing.”
The trouble is, in general signals cannot be convincing unless they are “costly”. This is an extremely important recent insight in biology (usually called “Zahavi’s handicap principle”). For example, a peacock’s tail signals his good genes, but it has to endanger his life to signal their goodness convincingly. (Otherwise any crappy old peacock could send the same signal dishonestly.)
So in marriage, serious liabilities are required — whether they are financial depends on the society, but they have to carry real legal weight. Isn’t it pretty obvious that “prenuptial agreements” are for people who have a diminished commitment?
Jeremy:
Yes, people have to be a bit crazy or blind to promise to love someone for the rest of their life.
I agree with you that such blindness may provide sufficient “glue” to raise children
together and that children often, although not always, benefit from being raised by both their parents, working as a team.
However, not all marriages produce children and even if a marriage does produce children, the task of raising children is not life-long. After, say, age 15 or so, kids need their parents less (except to pay bills) and seek support among their peers.
So even if marriage serves an evolutionary purpose during the first few years of a child’s life, after that marriage is on its own, without a raison d’etre besides suiting both partners.
What’s more, the very fact that love is blind (and as you note, must be so in order to keep a couple together, making sacrifices for their children) seems to militate against realism in financial affairs. People who do not “see” the other cannot negotiate rational contracts.
So in marriage there seems to be a tension between the need for blind love and the need for each participant to ensure that his or her financial interests are being watched over.
@ S. Wallerstein, not a business relationship … a shared life. I said nothing about a business relationship, which is something much narrower than a shared life.