Thursday, May 14, 2009

Marriage As A Contract

Assistant Village Idiot has a post up about same-sex marriage which is pretty good at trying to tease out arguments for, or against it. While commenting there, I was reminded that our concept of marriage is frequently out of sync with the bare bones of what marriage is--a legal and financial contract.

While we frequently think of marriage as the beginning of a relationship between two people who love each other, it is hard to deny to cold reality that marriage is an agreement to be contractually bound to one another. Love, honor and cherish sound romantic and sweet, but there's a reason in sickness and in health, 'til death do us part is in the vows. We are committing ourselves to an obligation that cannot be overruled by changing circumstances.

I think it's fair to say that divorce rates have sky-rocketed over the last few decades, not because people are less faithful than they were in the past, but because marriage has been understood as an arrangement purely for the sake of love. When those loving feelings disappear, then why continue to be married?

You can see this in the way popular culture portrays the weight of entering marriage. The doubts we hear voiced concern themselves with whether a person can love someone forever, or be sexually faithful to one person exclusively. Emotionally, that's important. Yet, that's not the real point of marriage.

The core of marriage is strengthened by the fact that a couple has legal and financial rights which are upheld by the legal system of a particular society. The protections not only guard the rights of the couple as a unit, but obligate the spouses to one another in the case of shared assets, inheritance rights, providing for future children and providing care for a spouse who has become disabled or ill.

In the past 40 years, divorce has become an economic luxury.  Because women have gained more access to legal rights and economic opportunities, it has become easier for them to divorce without the fear of poverty or destitution.  In the past, divorce was a huge financial risk for women. They had few options, especially if they had children.  

The recent decline in divorces as the economy has soured backs up the notion of divorce as an economic luxury.  People have been sticking it out, unable to divorce because of the financial strain.

Of course, this doesn't mean that the people who aren't divorcing are happy.

Then again, marriage isn't about happiness.....as any married couple can tell you.(cover your ears DH!)

I'm kidding...but only partly.  Marriage isn't about "happiness".  It's about choosing to build a life together. It's a partnership. It's having shared goals and using the commitment given to one another to reach those goals.  

I have often wondered why people choose to live together for years, and yet never marry. They will share income, have kids, stay sexually faithful to their partners, but never quite pull the trigger on marriage. They'll say things like "it's just a piece of paper" when questioned, which gives the impression that they view themselves as being "married" in an emotional, love-oriented way.

But...they're not married.  What's the difference?  They haven't obligated themselves financially to one another. They can at any moment leave their partners with very few financial repercussions. A man or woman can decide after ten years to break up with their partner and sell a house which is solely in their name, leaving no recourse for their partner.  They can take any assets they choose, unless the partner can prove they have some claim to the assets, a difficult thing to do when you have co-mingled your finances without being married.

When a couple is married, almost all assets are considered marital assets.  Even a home in the name a single partner must be distributed equally, unless it can be proven that the home was owned free and clear before the marriage.

Marriage is much more than a piece of paper...it's a piece of paper with enormous power.

I wonder if we counseled more young couples on the economic commitments of marriage if we would do any better at preserving the seriousness of marriage.  If we really want to see marriage strengthened, we would increase the benefits of being married, and lessen benefits extended to domestic, heterosexual partnerships.  

If you want the government to bless your love union, then you should be expected to financially obligate yourself to preserving it. If marriage has a high cost associated with it, chances are that those entering into it will think twice before doing so recklessly, or divorcing so easily.

In some ways, granting Same-Sex Marriage may help turn the tide on divorce and co-habitation because all legal rights would be available to anyone who chooses to marry.  Anyone choosing to simply co-habitate would have no case for claiming discrimination by health insurance companies or the government. 

6 comments:

Buz said...

To say that marriage is a legal entity is like saying that a mind is the gray matter between ones ears. That brain is the device through which a mind interfaces with this physical reality, but the mind transcends the brain.

In the same way, marriage transcends governments and legalities. A contract is the device through which our government recognizes the idea of two people joining their assets, but the true reality of marriage is beyond anything anything that any government can define on a sheet of paper.

The core of marriage is not upheld by the rights of one person over another, it is bound together by a promise, a committment that one person makes to another. The government can make the financial penalties of breaking ones promise unpleasant, but it cannot force someone to keep their promise. Only a person's committment to keeping their word can force them to keep their promise.

Talking about the "economic luxury" of getting a divorce, it has long been that divorced women and their children make up a large chunk of the poorer class. It has been through the 70s, 80s, and 90s that a divorce was a great financial risk for a woman with children.

As for people living together without getting married, the ones I have talked to have either been married before and are afraid to commit again, or have had parents who divorced and after living through that, they are afraid to commit.

(Just celebrated 35 years with my high-school sweetheart.)

Buz

terri said...

Buz...of course marriage is more than a contract....but marriage as we understand doesn't exist without some kind of contract.

For thousands of years marriage was an economic venture. The act of supplying a dowry in some cultures, or the groom providing gifts for the bride etc. ....those are all contractual, economic gifts.

Most definitely divorced women and their households are poorer. So the word "luxury" seems out of place.

Consider that even though they are poorer, 100 years ago, by and large, they wouldn't have been able to get by at all. It wouldn't have even been a possibility. There were few jobs available to women. Those that existed were usually things like working in a sweat shop for 10 plus hours, leaving no time for her to cook, or care for her children.

There were no refrigerators, so a woman would have to shop daily....no microwaves, so cooking would be an all-day process...no day cares to drop the kids at.

The only way a woman could possibly make things work would be if she could afford to hire someone to do those types of things for her. ...which would have been way beyond her abilities.

Being poor in 20th/21st century America is not the same thing as being poor 50 years ago...or even being poor now in another country.

Many of our poor people would be considered to be living wealthily when compared to the poor around the world.

I believe marriage is a holy commitment before God. That commitment binds me to love my family, but to also care and provide for them.

I have a romantic side...I'm just looking at things from a big picture point of view. I wouldn't counsel young people to dispassionately find a mate who makes a lot of money! :-)

Trust me...we're not living high on the hog in my house, though we're grateful for what we have.

Congratulations on 35 years! You must be doing something right!

Buz said...

Yes, I have my wife totally fooled into thinking I am the greatest guy on earth.

Actually 60 years ago it was nearly impossible to get a divorce, and women were not so lax in their morality. So, if a guy wanted "some action" he had few options other than getting married. AND once he was, he stayed that way. IF he desparately wanted a divorce, he had to pay quite highly for it. So, a woman either had a husband to support her or an ex-husband, who was forced by law, to support her.

AVI's link has a link to a post by Jane Galt which has some notes about divorce pre-1950 and how things have changed.

Buz

MInTheGap said...

I prefer to think of marriage as a covenant rather than a contract-- the reason being is that to me it's a promise. I'm with you most of the way here-- the semantics of what love binds a couple is what I believe has really changed.

Unconditional love was what was in the vows that were said-- a love that promised to stay with the partner, regardless of what happened.

That love was cheapened (pick your method) into the feelings type of love, which always waxes and wanes. So people were trained that people that were in love got married, and if they "fell out of love" they needed to go elsewhere.

I disagree with your last thoughts, and impacts of homosexual marriage, but not only for the reasons you expect. I don't believe that a huge constituency of domestic partnerships are only homosexual. There's a growing trend of unwed mothers and people living together.

Why? Because of the exact reasons Buz and you outlined. Marriage takes commitment. We have a generation that has grown up with divorce and doesn't want to do it to their kids. They don't want to share/lose their assets, and why "buy the cow when you can get the milk for free."

If you wanted to see the change you discuss, you'd have to look into removing domestic partner laws and close the "no fault divorce" legislation. If we started telling people there was no benefit to living together without marriage I believe you'd find that more people would get married.

terri said...

Min...that's kind of what I was getting at towards the end of the post. If same-sex marriage were to pass, though many people wouldn't want it for cultural reasons, it would impact heterosexual partnerships negatively. Health insurance companies would no longer have to cover "domestic partnerships" which can be used by heterosexual or homosexual couples.

Instead, they would only be required to cover couples who are legally "married". State laws giving benefits to common-law marriage could be phased out.

I don;t necessarily agree about no-fault divorce laws. The cat is already out of the bag on that one. There are legitimate reasons for people to divorce.

In the case of abusive relationships, making divorce harder could have drastic effects on, typically, a woman and her children.

At this point the only ay to truly lower the divorce rate is through social forces and attitudes.

I do think the bad economy can have a positive effect in this area....not just by making it harder for people to divorce, because that would only be temporary. Yet, I wonder if some of those couples who have put it off until some point in the future will inadvertently find ways to work through some of their issues, or bond in the process of dealing with the crisis.

There's no way to know if that can or will happen.

MInTheGap said...

I'm not sure that it would be as a negative as you think on the domestic partnerships simply because it's hard to reign in what has been extended. There are many entitlements that are now afforded that people scream when they are no longer there.

Certainly there needs to be a way for domestic abuse to be dealt with-- it should be seen early and should be treated seriously. In extreme cases, the offender should be incarcerated, and the abused should be protected.

Assault and Battery is the same whether it's between spouses or it's against someone else, and should be treated as such-- would you agree?