Abstract
Legal marriage is a type of contract that confers a status on those individuals who marry. In this respect it substantially differs from the traditional idea that legal duties arising under contract law should be self-imposed by individuals, not dictated by the public in the form of a contract which everyone is required to enter if they wish to achieve the status of “married person.” This status consists of non-changeable terms about the indefinite duration of the contract, support obligations of spouses, the distribution of property, and the amount of taxes paid to federal, state and local government. One reason that unmarried persons might see this status as a desirable choice is that marriage has considerable economic benefits that are not enjoyed by unmarried co-habiting couples. One of the central questions of this chapter is whether this distribution of benefits between married and unmarried couples is justifiable. We look at several principles of just distribution in an attempt to answer this question. Another important part of this chapter is about the description and evaluation of gendered marriages in which laws in earlier times dictated specific roles for husband and wife. Third, and perhaps of most relevance in contemporary family law are questions about access to marriage. In this context, we examine both the 2015 Supreme Court decision overturning state laws prohibiting same-sex marriage, and the arguments given in the public debate about same-sex marriage prior to this decision. We will next look at some of the alternatives to traditional marriage such as private contracts and a recent proposal called “minimal marriage” which uses state regulation only to recognize and promote caring relationships between the parties to the marriage, regardless of number and gender. Our concluding discussion is about the exit rules enabling divorce or dissolution of a marriage in which we ask whether the rules for dissolution should be neutral with respect to moral and religious beliefs.
“Marriage is a coming together for better or for worse, hopefully enduring and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” J. Wm. O. Douglas Griswold v Connecticut (1965)
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Notes
- 1.
Common-law states now allow the divorce court to distribute the spouse’s property between them on a doctrine known as “equitable distribution.” This is not equivalent to equal distribution, but it is still regarded as just and fair (in times past common-law property was property owned by the spouse who earned or had title to it).
- 2.
In the current U.S. system, single-income married couples usually benefit from filing as a married couple because of income splitting, while dual-income married couples are often penalized in comparison. This is commonly referred to as “The Marriage Penalty.”
- 3.
A common justification for the tax benefit provided to married taxpayers is that “marriage increases family responsibility and necessitates the lower tax liability” (Oldman and Temple 1960). The problem with this rationale, however, is that the benefit is given to all married taxpayers, irrespective of any actual increase in responsibilities, such as the existence of children. Rather, the mere performance of a marriage ceremony provides the tax break. (Mess, 87) “A woman married to a man for just 9 months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.” (Coontz, A27, quoting Kotlikoff).
- 4.
Marriage to a blood relative accounted for nearly a third (31%) of all birth defects in babies of Pakistani origin in Bradford, England. The study involved 13,500 babies delivered in the Bradford Royal Infirmary between 2007 and 2011. (Bosely 2013).
- 5.
60% of those polled in 2015 said that same-sex marriages should be valid, a 33% increase from polls taken in 1996. http://www.gallup.com/poll/117328/marriage.aspx
- 6.
A county clerk in Kentucky recently denied a marriage license to a same-sex couple on the day after she lost an appeal to have the Supreme Court delay its decision in Obergefell v Hodges. The reason she gave for denying the license was that she was “acting under the authority of God’s law.” http://www.nytimes.com/2015/09/02/us/same-sex-marriage-kentucky-kim-davis.html
- 7.
“Thus, Martin Luther King’s use of Christian themes in his speeches met this standard because his calls for racial equality could also be justified through public reason,” but “legislation such as the Marital Rape Exemption or laws or private policies requiring female schoolteachers to resign on marriage is ruled out” (Brake, 136 and 139).
- 8.
Statsky quotes one attorney who commented that for decades New York’s divorce system was “built on a foundation of winks and falsehoods. If you wanted to split quickly, you and our spouse had to give one of the limited number of allowable reasons–including adultery , cruelty, imprisonment or abandonment–so there was a tendency to pick one out of a hat ... One legendary ploy involved listing the filing lawyer’s secretary as the partner in adultery (which may even have been true in a few cases)” (Statsky, 127–128, citing Elizabeth Gilbert, Eat, Pray, Love, 2006:30).
- 9.
These are pre-divorce agreements by married persons who have separated. They can cover support, custody, property division and other terms of their impending divorce. The divorce court must approve the terms of the separation agreement if the spouses want a divorce based on the separation agreement. (Statsky, 168).
- 10.
Rebecca West, “Divorce,” The London Daily Express, 1930.
- 11.
“Boys suffer more from divorce than girls because they understandably identify with their father, and in most cases of divorce it is fathers who leave the family home. When fathers leave they have much less contact with their children than they had with them prior to the divorce. “One large survey in the late 1980s found that about one in five divorced fathers had not seen his children in the past year, and less than half of divorced fathers saw their children more than several times a year. A 1981 survey of adolescents who were living apart from their fathers found that 52% had not seen them at all in more than a year; only 16% saw their fathers as often as once a week. Moreover, the survey showed fathers’ contact with their children dropping off sharply with the passage of time after the marital breakup” (Popenoe 1996).
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Houlgate, L.D. (2017). Family Contracts: Marriage and Divorce. In: Philosophy, Law and the Family. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-51121-4_9
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