What is marriage?

debit2credit

The ongoing debate about marriage equality has raised a few questions in my head about marriage and more precisely what it is, its history and future.

So what I'm talking about is....

What is marriage? Is it a social construct or something otherwise.. like a form of knowledge or discovered?

What makes marriage important? I consider a relationship to be important. What makes people/ society want to 'add' something to the relationship?

Its history: has marriage been a secular activity with a religious coating or has it been seen as a religious thing with secular perks? Any consistency across cultures?

Its future: in 200 years will people give a hoot about marriage and wonder what the fuss was about?

My own (uninformed) opinion on the above: I would have thought marriage is a social construct, secular purpose with religious overtones, incentivised by society as a means of keeping to order to childrearing and doesnt have a bright future.

Any thoughts?

Manach

In common law, marriage is understood to mean as per the up to recently as " that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others" as per the Hyde definition.

debit2credit

Manach wrote: »

In common law, marriage is understood to mean as per the up to recently as " that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others" as per the Hyde definition.

And does this make marriage less of a social construct?

clairefontaine

It's the state taking over your love life.

The Corinthian

Marriage is a social construct. It's only relationship to religion has been a historical one, in that religion has been the foundation of authority that has legitimised all social constructs from the first Sumerian city states through to when religion started to lose its influence with the Enlightenment.

So that Marriage is legitimized using religion, makes it no more a religious construct than Monarchy.

As far as being a social construct, the idea behind marriage was to create a 'guarantee' of sexual and paternal exclusivity and care by the woman for the man and provision and protection by the man for the woman. That is; she undertook to not only care for and have sex with him, but also to produce children only with him, while he undertook to protect and provide for her and those offspring.

As time progressed, still in the ancient period, the construct evolved to also encompass other social concepts, such as inheritance, legitimacy, social class and other political dimensions. Polygamous, monogamous or whatever; all forms of marriage have essentially followed this broad model.

Whether it was for life or not was another thing. It appears that all forms of marriage, through the ages did aspire to it being something for life, although how well they did so is another matter, as divorce has existed in numerous societies. However, up until recently, it was not an easy thing to dissolve a marriage in any society; a breech of the marriage contract was typically necessary and the social consequences were often severe for both spouses.

Which brings us to marriage today. It's changed drastically in the last century, notably in where it comes to divorce. To begin with, 'no fault' divorce has been introduced, meaning that a breach in the marriage contract is no longer necessary and in many jurisdictions, such as Ireland, where only 'no fault' divorce is catered for, there is no legal redress for a breach in the marriage contract.

It has also become socially far more acceptable to divorce and thus, along with laws that make it easier and faster to get divorced, it's prevalence has increased dramatically.

Secondly, over a century of feminism has resulted in women's rights associated to marriage improving drastically. A woman is no longer obliged to guaranteed exclusive sexual rights, for a start. And with the shift from rights to one's children from being almost exclusively the father's to the mother's, it has resulted in a huge imbalance, where even after the disillusion of marriage, the man still must fulfil the obligation of provision, while the woman is no longer tied to any marital obligations.

All this has led to phenomenon in many Western countries known as the Marriage Strike (where men avoid or refuse to get married), to two thirds of divorces initiated by women, increasing divorce rates in much of the West (because, in general the ease to do so has increased) and more cohabitation and 'unmarried' families (as more people in general begin to avoid the complications of marriage).

Yet many people (the majority of long term relationships) continue to get married, despite the above. So while far less prevalent or taken seriously, it is still immensely popular.

In short, marriage is not what it once was and a lot of people are either avoiding it for this reason and more still are in denial about it. We want it to be a life-long union, yet want easy divorce to keep our options open. We want to share with our partners, but want to have pre-nups so we don't have to. We want the security that we have someone to have and to hold, for richer and for poorer, in sickness and in health; until we don't feel like it any more.

In short, marriage has become a temporary social construct, masquerading as a permanent one.

debit2credit

clairefontaine wrote: »

It's the state taking over your love life.

Yes and you could include religious groups in the past. So how much of marriage is related to control? Especially social control?

Perhaps we have outgrown this. Why would the state need to validate the relationship a) in the past but especially b) in the present day?

debit2credit

The Corinthian Thanks for a 'tour De force' in that post. There are so many discussion points in it I am going to pick two for now and I'll comment on the others afterwards.

The Corinthian wrote: »

As far as being a social construct, the idea behind marriage was to create a 'guarantee' of sexual and paternal exclusivity and care by the woman for the man and provision and protection by the man for the woman. That is; she undertook to not only care for and have sex with him, but also to produce children only with him, while he undertook to protect and provide for her and those offspring.

This is very interesting. I'm curious how much we could draw from sociobiology here? Are there equivalents in other species of the 'guarantee'? If 'marriage equivalents' are happening in nature would this impact our view of marriage as being a (human) social construct?

The Corinthian wrote: »

Whether it was for life or not was another thing. It appears that all forms of marriage, through the ages did aspire to it being something for life....

In short, marriage is not what it once was...

In short, marriage has become a temporary social construct, masquerading as a permanent one.

Again fascinating stuff Corinthian :-)

What I would love to know is whether marriage was always viewed as 'contractual'? Short term contract now.. long term contract for last X thousand years but something otherwise previous to that (or concurrent if we're talking about a non western culture perhaps)?

Also were promises or vows always integral to (non forced) marriages? Any historical society with "common law" marriages?

debit2credit

debit2credit wrote: »

What is marriage?

The triumph of hope over experience.

The Corinthian

debit2credit wrote: »

This is very interesting. I'm curious how much we could draw from sociobiology here? Are there equivalents in other species of the 'guarantee'? If 'marriage equivalents' are happening in nature would this impact our view of marriage as being a (human) social construct?

Do social constructs exist outside of our species? Maybe with bees and ants, but to the best of my understanding, such constructs are a uniquely human invention designed to make us behave against our 'baser' instincts.

After all, some animals do mate for life, but require no 'guarantee' that they'll remain together, as it is their nature to do. Humans don't actually mate for life; as best as we can figure out, we mate for between five and ten years, allowing the offspring of the union to become relatively mature at which point we go our separate ways.

What I would love to know is whether marriage was always viewed as 'contractual'?

Yes. I cannot think of a single point in recorded history where it wasn't. Indeed, when you think about it, if not an agreement - a contract - why would you need to marry anyway?

Short term contract now.. long term contract for last X thousand years but something otherwise previous to that (or concurrent if we're talking about a non western culture perhaps)?

I suspect we can only speculate if marriage, or some 'proto-marriage', existed prior to the Neolithic revolution. Today, many surviving hunter gatherer cultures don't have any form of marriage, yet others do.

Also were promises or vows always integral to (non forced) marriages? Any historical society with "common law" marriages?

Vows were not always uttered by the bride and groom. I believe that in Hellenistic culture their families did the bulk of the swearing as the emphasis on the union was between two families rather than two individuals.

Common law marriages are a curious thing, in that they're present only in English common law (and those codes of law that inherited English common law). Also, it should not be presumed that a common-law spouse was the same as a normal spouse - legally, a common-law spouse lacked many of the advantages of a normal one.

It appears that things such as common-law 'marriages' (no one actually gets married, they're just presumed to be 'de facto' married - marriage by habit and repute) really only started appearing when the State took an interest in marriage; specifically with the introduction of social welfare (in the shape of the modern bread Dole) and taxation. Even the recent cohabitation bill conveniently allows the State to shift responsibility to financially maintain ex-boy and girlfriends from the social welfare system to their formers parters.

Tangatagamadda Chaddabinga Bonga Bungo

Good points raised there The Corinthian, I can't really add much to them but can give my take.

The Irish State has become the surrogate father figure to a large minority of Irish children born today. There was no real financial provision provided by the state 40 years ago, there were no grounds for divorce 20 years ago and due to the social pressure there was no such thing as mothers of 'bastard' children hanging around so you had a situation where all (99%?) of children were born into locked down lifelong marriages.

We now have the highest rate of children being born to unmarried parents in Europe, over one in three, which when you consider the above is an astronomical social shift in the space of a generation. I would put this forward as an explanation as to why family law, divorce law and the entire social welfare system related to childcare hasn't kept pace with this change and why I think it's archaic.

If a couple of 22 year olds in their final year of college, who both still live at home with their respective families have an unplanned pregnancy, there is a far greater incentive for the woman to 'go it alone'. She can finish her exams, and has the luxury to decide whether she wants to take a year out as a mother or she can look for a part time/full time job. She will be provided with a nice and free house/apartment, will get a medical card, will get children's allowance, will get single parent family payment and can get money from the father of said child either under the table or through the courts. Her other option is to move in with the father of her child (maybe get married) and will be assessed using his income for all the benefits outlined, she won't get the single parent family payment, no medical card ect. This would provide an even stronger incentive for a women with no college education, little chance of affording her own home, ect. to not get married.

The state backs the mother of a child through cash payments and legally through the family courts making marriage appear less attractive (and necessary) for both women and men essentially.

sawdoubters

http://en.wikipedia.org/wiki/Marriage

Peregrinus

As others have said, marriage is a social construct.

I think it arises out of the fact that a relationship between two individuals can have consequences and effects that are relevant to more than just the two individuals concerned. Marriage provides a structure for recognising and dealing with those consequences and effects.

Corinthian and I - this is purely hypothetical, you understand - can have all the hot monkey sex we like, and it’s nobody’s business but ours. And we can be as lovey-dovey as we like and we can make all the promises about eternal devotion we like and, still, it’s nobody’s business but ours. But when we marry, we’re making our relationship everybody’s business, and by and large everybody accepts that it’s their business. So, for example, inheritance rights change on marriage, and that affects the people who would otherwise inherit if we were not married. Tax treatment changes on marriage. Legally-enforceable support obligations arise on marriage. Presumptions of paternity arise. Etc, etc, etc. There are all kinds of legal and, just as important, social consequences. Lots of people are affected or potentially affected in lots of ways when two people marry.

We tend to assume, because it has been the case in the relatively recent past, that “marriage” has to be associated with “wedding”, and that if there’s no wedding there’s no marriage. This doesn’t have to be so; there have been lots of times in lots of societies where setting up home together and having children was all you needed to be regarded for all purposes - legal and social - as married. (And this survives in a few places where they still have “common law marriage” - i.e. if two unmarried people shack up they really can find themselves legally married, without any ceremony.) Or, as has already been pointed out, if there is a ceremony it can involve not the two individuals, but their families. Or it can involve the groom, and the bride’s father. Or even the groom’s father and the bride’s father. It’s only with our modern western values influenced by individualism that we assume a marriage has to be something created by the two individuals concerned.

Similarly the notion that marriage is a “contract” is a modern western notion, which focusses on the fact that in our society a couple agree to marry, and agreement is seen as the foundation of all important relationships. But there are lots of relationships which are not founded on agreement - parent and child, for example - and lots of societies would have said that marriage was primarily a matter of status - you are married or single, just as you are adult or minor, slave or free, citizen or stranger, nobleman or commoner, patron or client. This particular status might be something you chose or agreed to and other statuses might not be, but that need not be seen - and probably wasn’t seen - as fundamental in understanding the nature of marriage. Lots of societies had the notion of a “marriage contract”, but it’s important to understand that in many of those societies you weren’t married because you had a contract; rather, you had a contract because you were married.

As for the notion that marriage is falling into disuse and will disappear - no. All societies that we know of have been characterised by marriage; it would be extraordinary if ours was the first to abandon it, and I see no evidence or compelling argument that it will.

What may be falling into disuse - or, at least, becoming less popular - is weddings. Lots of people form lasting or permanent conjugal unions without having a wedding. In one sense, of course, this means that they’re not married. But in another sense, they very much are, and they are becoming more and more so as, both socially and legally, we recognise and accept the consequences of their relationships. You wouldn’t consider inviting A to dinner without his partner B? If you found A was sleeping with C you would regard that as cheating on B? (Or B would?) Does A’s relationship with B have consequences for the social welfare entitlements of either of them? Is A’s relationship with B something that might affect, say, a visa application? A loan application? Could A and B adopt a child together? If A and B split up, can either of them go to court to have the financial fallout regulated? And do the powers which the court has differ from the powers the court would have if A and B had celebrated a wedding?

In short, more and more nowadays we are according social and legal recognition to conjugal relationships even where there has been no wedding, and more and more we are assimilating the treatment of these relationships regardless of whether a wedding has been celebrated or not. And I think a sociologist or an anthropologist would say that we’re not abandoning marriage (in the sense of the social and legal structure by which we recognise and deal with the societal consequences of conjugal relationships); we’re just abandoning the notion that a marriage requires a wedding.

The Corinthian

Peregrinus wrote: »

Similarly the notion that marriage is a “contract” is a modern western notion

Actually, you'll find that it's pretty universal and not limited to Western cultures.

but it’s important to understand that in many of those societies you weren’t married because you had a contract; rather, you had a contract because you were married.

Marriage was the contract. Beyond that, I don't really see the point in the distinction you're making.

As for the notion that marriage is falling into disuse and will disappear - no. All societies that we know of have been characterised by marriage; it would be extraordinary if ours was the first to abandon it, and I see no evidence or compelling argument that it will.

While I'd agree that marriage is probably too fundamental a social device in human society to vanish, I can potentially see it being replaced.

Tanga... (I won't bother with the rest of the username) got one thing wrong, and that is that Ireland has the highest rate of children being born to unmarried parents in Europe; actually Iceland has, at 65% (with 51% in cohabitation), at least back in 2000.

Why it's so high is probably historical. Cohabitation has been commonplace there since the 19th century and has been a legally recognised relationship since the early 20th. As a result marriage rates are relatively low.

So while we may never see marriage vanish, we may well see it decline significantly in favour of a more attractive relationship union, if it is a viable alternative. I suspect this is inevitable as, if marriage cannot reform itself to reflect modern realities, people will abandon it in favour of alternatives that do reflect those realities.

Weddings are another thing; they've also become less popular, but their decline, as a percentage of those who marry, is far less than the decline in marriages overall.

So the sociological need for relationship unions, forming the basis of a family unit (however you want to define that), will remain, but it may not be marriage as we've known it.

Corinthian and I - this is purely hypothetical, you understand - can have all the hot monkey sex we like, and it’s nobody’s business but ours.

Ahhh, hold on; that's how HIV crossed over to humans...

Tangatagamadda Chaddabinga Bonga Bungo

The Corinthian wrote: »

Tanga... (I won't bother with the rest of the username) got one thing wrong, and that is that Ireland has the highest rate of children being born to unmarried parents in Europe; actually Iceland has, at 65% (with 51% in cohabitation), at least back in 2000.

Why it's so high is probably historical. Cohabitation has been commonplace there since the 19th century and has been a legally recognised relationship since the early 20th. As a result marriage rates are relatively low.

So while we may never see marriage vanish, we may well see it decline significantly in favour of a more attractive relationship union, if it is a viable alternative. I suspect this is inevitable as, if marriage cannot reform itself to reflect modern realities, people will abandon it in favour of alternatives that do reflect those realities.

Weddings are another thing; they've also become less popular, but their decline, as a percentage of those who marry, is far less than the decline in marriages overall.

So the sociological need for relationship unions, forming the basis of a family unit (however you want to define that), will remain, but it may not be marriage as we've known it.

Didn't think extramarital births accounted for the majority of births in any country but there seems to be quite a few. Such a clean sweeping uptrend for all of Europe it seems.

Can I say what I meant to say (before your correct correction) was that Ireland tops an EU survey, alongside Latvia, for the amount of children living in single-parent households.

Peregrinus

The Corinthian wrote: »

Actually, you'll find that [the concept of marriage as a contract is] it's pretty universal and not limited to Western cultures.

I think not. Our understanding of “contract” is itself a product of modern western capitalism. Sure, we can examine other cultures and other times in light of that notion and identify things that look like contracts to us, but the idea that those people themselves understood marriage (or anything else) in terms of foundation upon a contract is simply us projecting our ideas onto them. Civil status in most pre-modern societies was generally not founded on contract or agreement; it was founded on social relationships which were viewed as facts rather than intentions or agreements.

After all, it’s not difficult to find examples of pre-modern societies where you could acquire a wife by conquest. It’s very hard to analyse that in terms of a contract. Or you could acquire a wife by purchase from her father/her current husband, and while you might say that the purchase was a form of contract, it wasn’t a contract between the parties to the marriage, and hence not the foundation of the relationship between them.

The Corinthian wrote: »

Marriage was the contract. Beyond that, I don't really see the point in the distinction you're making.

A marriage contract in many pre-modern societies was a bit like a pre-nup today. If you were going to be married to someone, it was a good idea - but not essential - to have an agreement about how the marriage would be conducted. (E.g.: Would the husband agree to take no further wives?) But you didn’t have to have a contract; hence such a marriage was not founded on contract.

The Corinthian wrote: »

Cohabitation has been commonplace there since the 19th century and has been a legally recognised relationship since the early 20th. As a result marriage rates are relatively low.

So while we may never see marriage vanish, we may well see it decline significantly in favour of a more attractive relationship union, if it is a viable alternative. I suspect this is inevitable as, if marriage cannot reform itself to reflect modern realities, people will abandon it in favour of alternatives that do reflect those realities.

Weddings are another thing; they've also become less popular, but their decline, as a percentage of those who marry, is far less than the decline in marriages overall.

Can I quiz you a bit on this? On the one hand, you seem to be accepting my distinction between weddings and marriages - i.e. that you can have relationships which can justifiably called “marriage” even if there has been no wedding. On the other hand, you seem to be making a distinction between legally-recognised cohabitation and marriage. I’m not sure how you reconcile the two positions.

My case, in essence, is (a) that marriage is the social construct by which the societal consequence and implications of conjugal relationships are recognised, formalised and accommodated, and therefore (b) that any social construct which does this can reasonably be called “marriage”. If we assimilate the legal and social status of unwed cohabiting couples with the status of couples who have celebrated a wedding, then our social construct - marriage - includes both the wed and the unwed couples.

This ties in with my point that marriage is not necessarily founded on contract. It’s not uncommon for an unwed couple to split up and for one of the couple to be horrified that the courts have power to make maintenance orders, property adjustment orders, etc in favour of the other, despite the fact that they never wed. Clearly, the relationship between the couple and the powers the court has as a result is not founded on contract, because at least one of the couple never agreed to grant anyone a claim to, or powers over, his (or her) property, and may indeed have decided not to participate in a wedding for that very reason. If I’m right in saying that, functionally, this is a marriage, then clearly it’s not a marriage founded on contract; it’s a marriage which exists because society deems a marriage to arise out of the facts - cohabitation, begetting a child together, or both - regardless of the intent, understanding or wishes of the couple.

The Corinthian

Tangatagamadda Chaddabinga Bonga Bungo wrote: »

Can I say what I meant to say (before your correct correction) was that Ireland tops an EU survey, alongside Latvia, for the amount of children living in single-parent households.

My correct correction, may not have been so correct. Despite 65% of children in Iceland being born out of wedlock, all but 14% of those are still born within (stable) relationships, if we're strictly speaking of sole parents. Not sure how that compares to Ireland or other countries.

Given this, there is, I believe, a shift away from traditional marriage, in favour of viable alternatives, because the conditions of the marriage contract are no longer as attractive. Cohabitation has become one, given that the social stigma associated with illegitimacy has decreased dramatically and the stigma against cohabitation is a thing of the past.

Peregrinus wrote: »

Civil status in most pre-modern societies was generally not founded on contract or agreement; it was founded on social relationships which were viewed as facts rather than intentions or agreements.

If so, feel free to name a single example of where the 'rules' of a marital union were not agreed upon by the two sides of the marriage (not necessarily the bride and groom, btw); that in entering the union it would be understood that both had duties and responsibilities and that things such as dissolution of said union was also governed by rules.

The problem with your thesis is that marriage is by definition the imposition of an agreed form upon what would otherwise be a casual relationship. And that structure is de facto a contract; a binding agreement that both parties enter into (although not necessarily freely).

Where there may be confusion here is that while marriage is, in essence, contractual, it's not exactly the kind of contract we're used to. There's no physical contract to be annotated and signed. The contract, instead is largely based upon unwritten social convention and family law (whether imposed by the Four Courts or the village elders). Nonetheless, it's still a contract.

If you want further proof of it's contractual status, it is that it could be dissolved if the terms were broken - either ended (divorce) or declared null and void (annulment), with examples being adultery for the former and non-consummation for the latter.

After all, it’s not difficult to find examples of pre-modern societies where you could acquire a wife by conquest. It’s very hard to analyse that in terms of a contract.

I think you misunderstand the logic with bride kidnapping, as it is the acquiring of a bride by conquest, not a wife. The rational is that a woman, the bride, would be kidnapped by the groom. At this point her honour (with regards to her virginity) would be essentially tarnished and her family would be forced to agree to the marriage - at which points it reverts to it's contractual status. The Rape of the Sabines is a typical example of this dynamic.

Or you could acquire a wife by purchase from her father/her current husband, and while you might say that the purchase was a form of contract, it wasn’t a contract between the parties to the marriage, and hence not the foundation of the relationship between them.

Actually it was a contract between the parties to the marriage; two families or the man and the woman - except it was often her father that spoke on her behalf.

A marriage contract in many pre-modern societies was a bit like a pre-nup today.

You do understand that a pre-nup is also a contract?

If you were going to be married to someone, it was a good idea - but not essential - to have an agreement about how the marriage would be conducted. (E.g.: Would the husband agree to take no further wives?) But you didn’t have to have a contract; hence such a marriage was not founded on contract.

I don't think you understand what a pre-nup is; it is essentially an addendum or amendment to the marriage contract, signed prior to entering the marriage contract. One can also carry out a postnuptial agreement, or post-nup, which is identical, except that it is entered into after entering the marriage contract.

Can I quiz you a bit on this? On the one hand, you seem to be accepting my distinction between weddings and marriages - i.e. that you can have relationships which can justifiably called “marriage” even if there has been no wedding. On the other hand, you seem to be making a distinction between legally-recognised cohabitation and marriage. I’m not sure how you reconcile the two positions.

I would have thought the difference pretty obvious, even on a practical level.

A wedding is simply an event, a ceremony. I've been to lavish weddings that cost tens, if not more, thousands of Euro. I've also got friends who married when the groom went into the necessary government office, got into a queue, and had his marriage form duly stamped (apparently the guy in front of him in the same queue was getting a divorce) and thus had no wedding.

In a wedding the couple would show the community they were being joined and even often recite the contractual agreement - the vows. The guests were witnesses to the contract. That's all it is and was arguably more important when record keeping of such unions was less dependable or accessible.

Between a married and a cohabitating couple, the distinction is also simple. They've not entered any contract, no agreement. Each can walk away whenever they like, without there being need that a contract allows for this. They can stay together for the rest of their lives, but it remains unrecognised by the wider community or law.

But I note that you've specified legally-recognised cohabitation, which is not the same thing and I never suggested any serious distinction between it and marriage. Depending upon the legally-recognised obligations in that cohabitation, it essentially is just another form of marriage. Any distinction between the two is essentially in whatever legal differences there are in law, between them.

This ties in with my point that marriage is not necessarily founded on contract. It’s not uncommon for an unwed couple to split up and for one of the couple to be horrified that the courts have power to make maintenance orders, property adjustment orders, etc in favour of the other, despite the fact that they never wed.

Only in a few limited jurisdictions and they're only horrified because they were ignorant of laws that are, in Ireland, only a few years old.

The cohabitation bill in Ireland, for example, is still a contractual agreement, it's just an opt-out agreement, rather than a more traditional opt-in. That's still a contract and one you'll find elsewhere - it's commonplace with a lot of online 'trial' memberships.

Peregrinus

The Corinthian wrote: »

If so, feel free to name a single example of where the 'rules' of a marital union were not agreed upon by the two sides of the marriage (not necessarily the bride and groom, btw); that in entering the union it would be understood that both had duties and responsibilities and that things such as dissolution of said union was also governed by rules.

Oh, gosh, that’s easy. It’s not the case in our society that the rules of a marital union are “agreed upon by the two sides of the marriage”; they are set by law and other societal mechanisms. So if you and I wish to enter into a polygamous or potentially polygamous marriage, we can’t; in our society marriage is exclusive. And you’re have noticed the debate over same-sex marriage; if all that was required for same-sex marriage was that the couple concerned should agree on it, there would be no fuss.

We don’t agree to the rules of marriage; we only agree to marry, and it’s on that basis that we try are inclined to analyse marriage as a contract. (A standard-form contract, obviously, whose terms are largely not negotiable.) But if you take away the element of agreement between the couple and introduce concepts like marriage by conquest, arranged marriage, dynastic marriage, common law marriage, where the consent of the spouses plays less role or even no role, then the “contract” analogy falls over pretty comprehensively.

I’m not saying that marriage can’t be a contract. It can certainly have some of the incidents of a contract, and in some societies it has many of them. But marriage isn’t inherently a contract; you can have societies whose concept of marriage really bears very little resemblance to a contract. (And with our legislation assimating cohabitants and spouses we are moving a little in that direction.)

The Corinthian wrote: »

The problem with your thesis is that marriage is by definition the imposition of an agreed form upon what would otherwise be a casual relationship. And that structure is de facto a contract; a binding agreement that both parties enter into (although not necessarily freely).

No offence, but I’m not following you. If common law marriage, for want of a better term, is an “imposition”, then it’s not something the couple agree to, and therefore it’s not a contract - not even a “de facto” contract, whatever that is. Agreement between the parties is the essence of a contract, and an imposed common law marriage as a consequence of shacking up is no more a contract than an imposed prison term as a consequence of robbery with violence, or an imposed maintenance obligation as a consequence of fatherhood, or an imposed jury service obligation as a consequence of citizenship.

I come back to the point I made earlier; our conjugal relationship is a private matter which we can negotiate, enter into, withdraw from, etc. If you want to view that as a contract, well, maybe. But that’s not marriage; marriage is the relationship between us as a couple and our wider society; it’s the fact that everyone else has to recognise and accept our couplehood and the implications it has for them. Which is why same-sex couples can’t marry simply by exchanging vows; they have to exchange vows (or do whatever) which the community accepts and recognises as constituting a marriage which binds not just the couple but the community as well.

Is that a contract? Well, possibly, a contract between the couple and the community, if we employ the “social contract” language of Locke and others. But that’s very different from “contract” in the sense of freely-agreed commercial bargain. The terms of social contracts are not negotiable, and you can (and typically do) find yourself a party to a social contract without ever agreeing to it. To be honest, I don’t find “social contract” language a terribly helpful way of taking about the relationship of the individual (or the couple) to society, and the mutual rights and obligations that they have with respect to one another. And I think it’s equally limited when it comes to describing the inherent nature of marriage.

The Corinthian wrote: »

If you want further proof of it's contractual status, it is that it could be dissolved if the terms were broken - either ended (divorce) or declared null and void (annulment), with examples being adultery for the former and non-consummation for the latter.

The mere fact that a relationship can terminate doesn’t mean that it was a contract to begin with. (Unless - and this thought is occurring to me as I write - you have such a wide understanding of “contract” that all relationships are contracts; “contract” is just a synonym for “relationship”?)

The Corinthian wrote: »

I think you misunderstand the logic with bride kidnapping, as it is the acquiring of a bride by conquest, not a wife. The rational is that a woman, the bride, would be kidnapped by the groom. At this point her honour (with regards to her virginity) would be essentially tarnished and her family would be forced to agree to the marriage - at which points it reverts to it's contractual status. The Rape of the Sabines is a typical example of this dynamic.

That’s just one type of marriage by conquest, though. There are others, where you can marry a conquered woman without any agreement, forced or unforced, from her family, and where you can marry a conquered women without having raped her. Have a read of the provisions in Leviticus about the treatment of women taken in battle, for example.

The Corinthian wrote: »

You do understand that a pre-nup is also a contract?

Of course I understand that it’s a contract. I just quibble with the word “also”!

And I would point out that a pre-nup can’t vary the rights and obligations that come with marriage. You can’t, by a pre-nup, agree that your marriage will be polygamous, for example, or that it will dissolve automatically after five years, or that it cannot be dissolved by the courts. And since the parties to a contract can normally vary it by a further contract this again is a respect in which marriage looks less and less like a contract between the parties and more and more like a status afforded (or imposed) by society.

The Corinthian wrote: »

I would have thought the difference pretty obvious, even on a practical level.

A wedding is simply an event, a ceremony. I've been to lavish weddings that cost tens, if not more, thousands of Euro. I've also got friends who married when the groom went into the necessary government office, got into a queue, and had his marriage form duly stamped (apparently the guy in front of him in the same queue was getting a divorce) and thus had no wedding.

In a wedding the couple would show the community they were being joined and even often recite the contractual agreement - the vows. The guests were witnesses to the contract. That's all it is and was arguably more important when record keeping of such unions was less dependable or accessible.

Hold on. If your friend joined a queue and had a form stamped and was thereby married with no involvement at all from the bride, in what sense can you regard that as a contract? Or is there, possibly, something you’re not mentioning here, like the fact that form was a record of the fact that the bride and groom had entered into commitments to one another? The form was perhaps even the instrument by which they did so? Because, in such a case, the exchange of commitments is a wedding, surely?

The Corinthian wrote: »

Between a married and a cohabitating couple, the distinction is also simple. They've not entered any contract, no agreement. Each can walk away whenever they like, without there being need that a contract allows for this. They can stay together for the rest of their lives, but it remains unrecognised by the wider community or law.

But I note that you've specified legally-recognised cohabitation, which is not the same thing and I never suggested any serious distinction between it and marriage. Depending upon the legally-recognised obligations in that cohabitation, it essentially is just another form of marriage.

Yes.

The Corinthian wrote: »

Only in a few limited jurisdictions and they're only horrified because they were ignorant of laws that are, in Ireland, only a few years old.

The cohabitation bill in Ireland, for example, is still a contractual agreement, it's just an opt-out agreement, rather than a more traditional opt-in. That's still a contract and one you'll find elsewhere - it's commonplace with a lot of online 'trial' memberships.

Two points. First, in the Irish system, the couple have to agree to opt out - they can contract out of legally-recognised cohabitation. But they don’t have to contract in to it. If in fact they don’t agree to contract out (if they disagree about it, or simply don’t think about it) then they are included, and their inclusion is clearly not founded on any agreement, because as a matter of fact there is no agreement. So how are you analysing that as a contract?

And, secondly, there are other jurisdictions - Australia, for one - where you can’t opt out. If certain facts regarding cohabitation are established, then the legal, administrative, etc, position of the couple concerned is assimilated to that of formally-wedded spouses, regardless of the wishes of either of both of them. How are you analysing that as a contract?

clairefontaine

Marriage is there to link children with their parents and parents with their children. But that is changing as the state is further increasing its powers over domesticity. So marriage is whatever the state says it is. And parenthood too will also follow as being defined by the state, and not by biology. WIth the so called equal rights marriage bills being passed you can soon expect it to extend to parenthood and look forward to seeing birth certificates that say not mother and father, but mother and co-parent. That will be the first symbolic step in obliterating the father. Anyone who is concerned about father's rights should absolutely be concerned about all the changes to marriage and parenthood imposed by the state.

This is an insightful look at those changes.
http://illinoisfamily.org/110files/uploads/2013/03/limited-Gov-Libertarian-Case-Ruth.pdf

and...

http://www.irishexaminer.com/ireland/equal-parent-rights-for-gay-couples-256111.html

The Corinthian

Peregrinus wrote: »

Oh, gosh, that’s easy. It’s not the case in our society that the rules of a marital union are “agreed upon by the two sides of the marriage”; they are set by law and other societal mechanisms.

I said agreed upon, not set by.

But if you take away the element of agreement between the couple and introduce concepts like marriage by conquest, arranged marriage, dynastic marriage, common law marriage, where the consent of the spouses plays less role or even no role, then the “contract” analogy falls over pretty comprehensively.

I've already covered all of this. To begin with you're ignoring that I pointed out that the two parties in a marriage are not always the bride and groom. They can also be the bride and groom's families, or the bride and groom may be represented by other parties (typically a patriarch or matriarch) in arranged marriages. It still remains a contract, just not in the narrow definition you wish to impose.

That covers all but common law marriage, which I also already pointed out is a bit of a funny case and still remains a contract - an opt-out one, rather opt-in; which is something I also raised in an earlier post.

If you're going to rebut my points, please actually address them.

No offence, but I’m not following you. If common law marriage, for want of a better term, is an “imposition”, then it’s not something the couple agree to, and therefore it’s not a contract - not even a “de facto” contract, whatever that is.

It remains a contract, even if it is an unfair one. Consider modern terms of service or privacy agreements in software. You can reject them at install time, in which case the software will terminate installation.

Problem with that is that often there are no clear, if any, alternatives to that software, leaving you at a disadvantage if you lack it, but with no other way to legally get it than to agree to what may be a disadvantageous agreement.

So people agree to the terms of such agreements, they 'sign' the contract, because they're essentially being bullied into it. This may make the contract invalid, but until that case is made successfully, it's still a valid contract.

If you don't like the impositions of marriage, many countries give you the option to change some of them, using pre-nups (although how binding these are varies). But beyond that the marriage that the state recognises is the only game in town and you can take it or leave it.

Which is why increasingly people have been 'leaving it' because not getting married was becoming a viable alternative to being coerced into an antiquated model that was out of sync with modern society. The State has noticed this trend, which is why in Ireland we saw the introduction of the cohabitation act to return to the previous status quo.

I come back to the point I made earlier; our conjugal relationship is a private matter which we can negotiate, enter into, withdraw from, etc. If you want to view that as a contract, well, maybe. But that’s not marriage; marriage is the relationship between us as a couple and our wider society; it’s the fact that everyone else has to recognise and accept our couplehood and the implications it has for them. Which is why same-sex couples can’t marry simply by exchanging vows; they have to exchange vows (or do whatever) which the community accepts and recognises as constituting a marriage which binds not just the couple but the community as well.

Exactly the same as any contract though - what use is any contract that is not recognised by a higher power, so that it may enforce it. Are you suggesting that even business contracts are not recognised by the community?

The mere fact that a relationship can terminate doesn’t mean that it was a contract to begin with. (Unless - and this thought is occurring to me as I write - you have such a wide understanding of “contract” that all relationships are contracts; “contract” is just a synonym for “relationship”?)

I wasn't talking about the end of a relationship, but the end of the marriage. Don't confuse the two.

That’s just one type of marriage by conquest, though. There are others, where you can marry a conquered woman without any agreement, forced or unforced, from her family, and where you can marry a conquered women without having raped her. Have a read of the provisions in Leviticus about the treatment of women taken in battle, for example.

Are you sure you're discussing marriage and not concubines?

And I would point out that a pre-nup can’t vary the rights and obligations that come with marriage. You can’t, by a pre-nup, agree that your marriage will be polygamous, for example, or that it will dissolve automatically after five years, or that it cannot be dissolved by the courts.

I never said it could. No contract can do that, and not just limited to pre-nups. For example, you can't contractually sell yourself into slavery.

Hold on. If your friend joined a queue and had a form stamped and was thereby married with no involvement at all from the bride, in what sense can you regard that as a contract?

She pre-signed it. By involvement I meant in the 'wedding', as this process of registration was the closest thing to a 'wedding' they had and she wasn't even present - that is what I was addressing there.

Two points. First, in the Irish system, the couple have to agree to opt out - they can contract out of legally-recognised cohabitation. But they don’t have to contract in to it. If in fact they don’t agree to contract out (if they disagree about it, or simply don’t think about it) then they are included, and their inclusion is clearly not founded on any agreement, because as a matter of fact there is no agreement. So how are you analysing that as a contract?

Same way that opt-out agreements are legally binding contracts elsewhere in society.

And, secondly, there are other jurisdictions - Australia, for one - where you can’t opt out.

You can always opt out; you split up. Happens a lot in Australia.

Peregrinus

The Corinthian wrote: »

I said agreed upon, not set by.

Hold on, I’m getting confused.

You said in post #16 “feel free to name a single example of where the 'rules' of a marital union were not agreed upon by the two sides of the marriage”.

And I pointed to our own society where the rules of a marital union are set by law. My marriage is monogamous rather than polygamous not because my wife and I have agreed that, but because the law says that. If my wife and I agreed that our marriage ought to be polygamous, it would still be monogamous. In other words, the rules of our marriage are set by law.

And your response to that is to say “I said agreed upon, not set by”.

I think you’re point is that my wife and I agreed to marry; we agreed to accept the standard, non-negotiable, legally-set “rules of marriage” that our society has established. Therefore, our marriage is a contract between myself and my wife.

Possibly so. But (a) that wouldn’t mean that all marriages are contracts; at most it would mean that mine is. I’ll come back to this point.

And (b) just because two people agree on a course of action, it doesn’t follow that everything which flows from that can be usefully analysed as a contract between them. Two examples:

1. A and B agree to conceive a child together, and in due course a child is conceived and born. A variety of legal consequences flow from that; A and B acquire both rights and obligations as parents, and the child acquires both rights and obligations. And the rights and obligations of third parties are also affected; e.g. A’s only brother, her nearest only living relative, loses the inheritance rights on intestacy which he had up to that point. Nobody would seriously attempt to analyse the consequences of A and B’s agreement in terms of a contract between A and B.

2. C and D agree to marry in Ireland in 1980. Under Irish law at the time, their marriage is indissoluble. They both know this, accept it and indeed are happy with it. It’s what they want. Subsequently the law is changed as a result of which in certain circumstances the marriage can be terminated by one of them, without the consent or even against the wishes of the other. Neither of them seek, want or approve of this change. It’s clearly true that they initially agreed to an indissoluble marriage. Nevertheless the indissolubility of their marriage was not founded on their agreement because their agreement is still in place and yet the indissolublity has disappeared. Or the converse could equally have happened; they might both have decided that they wanted to be free to divorce but Irish law might not have allowed for this.

I think this points to the difference between (1) agreeing to accept a particular status (even, agreeing with somebody that you will both accept a particular status) and (2) creating a status by contract. If the status is created by contract, and contract rests on the agreement of the parties, then it can be changed or revoked by their agreement. Marriage, generally, can’t.

You can try and analyse marriage as a standard form contract, but the analogy breaks down eventually. A standard form contract usually arises because one party - the ESB, say - insists on a standard form which the other party - the householder who wants an electricity supply - has to accept, if he wants electricity. The ESB won’t agree to any changes, but in principle they could. And if the householder asked for a change and the ESB agreed, the contract would take effect as varied between the parties. You can’t do that with a marriage.

The Corinthian wrote: »

I've already covered all of this. To begin with you're ignoring that I pointed out that the two parties in a marriage are not always the bride and groom. They can also be the bride and groom's families, or the bride and groom may be represented by other parties (typically a patriarch or matriarch) in arranged marriages. It still remains a contract, just not in the narrow definition you wish to impose.

But you’re ignoring the example I gave of a model of marriage by conquest which need not involve any agreement at all from the bride, the bride’s family, the bride’s community or anyone notionally representing the bride or anyone connected with her.

The Corinthian wrote: »

That covers all but common law marriage, which I also already pointed out is a bit of a funny case and still remains a contract - an opt-out one, rather opt-in; which is something I also raised in an earlier post.

First of all, why do you say that it’s “a bit of a funny case”? You are assuming that marriage is fundamentally a contract, and therefore treating examples which don’t fit into this mould as “funny cases”. Shouldn’t you rather by looking at the diversity of marriage within different human societies, and looking at what they all have in common in order to identify what are the fundamentals of marriage?

Secondly, to treat common law marriage as a “funny case” is to ignore the historical reality, which is that common law marriage was the norm for most of the time, with ceremonial marriage only becoming the norm (legally and in terms of the total numbers of marriages within the community) only in modern times. At least as far as European history and culture goes, it’s the need for a ceremony or form to constitute a marriage which represents an innovation.

The Corinthian wrote: »

If you're going to rebut my points, please actually address them.

I could say the same!

The Corinthian wrote: »

It remains a contract, even if it is an unfair one. Consider modern terms of service or privacy agreements in software. You can reject them at install time, in which case the software will terminate installation.

Problem with that is that often there are no clear, if any, alternatives to that software, leaving you at a disadvantage if you lack it, but with no other way to legally get it than to agree to what may be a disadvantageous agreement.

So people agree to the terms of such agreements, they 'sign' the contract, because they're essentially being bullied into it. This may make the contract invalid, but until that case is made successfully, it's still a valid contract.

If you don't like the impositions of marriage, many countries give you the option to change some of them, using pre-nups (although how binding these are varies). But beyond that the marriage that the state recognises is the only game in town and you can take it or leave it.

But the difference is that in the software contract the problematic terms are imposed by one party, and accepted (albeit reluctantly) by the other. Or not accepted, in which case there is no contract.

Whereas as far as marriage goes, the problematic terms may not be wanted by either party and yet they still apply in full. So whatever the foundation for those terms may be, it is not any kind of agreement between the parties - they may actually be agreed that they don’t want them. And that’s very difficult to shoehorn into a model of a marriage as founded on an agreement between the spouses (or between their parents, families, etc representing the spouses).

The Corinthian wrote: »

Exactly the same as any contract though - what use is any contract that is not recognised by a higher power, so that it may enforce it. Are you suggesting that even business contracts are not recognised by the community?

There’s a difference, though. Business contracts are enforced as against the contract counterparties but in general they don’t affect the rights and obligations of third parties. You and I could agree, for example, that we wouldn’t report one another’s posts on boards.ie to a Mod, and that might (or might not) be enforceable. But there is no way we can, by agreement, deprive other boardies of their rights to report our posts, or compel the Mods to disregard such reports.

Whereas, as I have pointed out before, if you and I marry, that really can affect other people’s rights and obligations quite significantly, in a huge variety of ways. (This goes back to my point is that the main purpose of marraige is to regulate the consequences for the community and its members of a conjugal relationship to which they are not party.) And that wouldn’t be characteristic of a contract.

The Corinthian wrote: »

Are you sure you're discussing marriage and not concubines?

Yes, I’m talking about marriage. Leviticus distinguished between marriage and concubinage. This is marriage.

The Corinthian wrote: »

I never said it could. No contract can do that, and not just limited to pre-nups. For example, you can't contractually sell yourself into slavery.

Exactly! Slavery, when it existed, was a status, not a contract. You could, in Roman times, sell yourself into slavery - it was the last resort of the destitute - but that wasn’t how most slaves ended up as slaves. Which shows that, even if a contract is present, it’s a mistake to assume that personal status is founded on it.

The Corinthian wrote: »

She pre-signed it. By involvement I meant in the 'wedding', as this process of registration was the closest thing to a 'wedding' they had and she wasn't even present - that is what I was addressing there.

OK, we’re just disagreeing about terminology here. By “wedding” I mean any form or ritual that you go through in order to acquire the status of marriage. It may be very elaborate and involve bishops, choirs and cathedrals, or it may be very simple and involve formal agreement to accept the status, which may be signified in writing, and/or registration of such an agreement. But they all serve the same purpose - they are all voluntary acts intended to engage the status of marriage. They are all weddings.

The Corinthian wrote: »

Same way that opt-out agreements are legally binding contracts elsewhere in society.

I’m not asking you how an opt-out agreement is a contract. I’m asking you how not executing an opt-out agreement is a contract, where the parties have simply never considered executing one, or have considered it but have disagreed about what to do.

The Corinthian wrote: »

You can always opt out; you split up. Happens a lot in Australia.

No. Both formal spouses and cohabitants can split up. That doesn’t mean that their marriage goes away - it still has important consequences, including the fact that the courts have wide powers to order maintenance, make property adjustment orders, etc of a kind that they certainly could not make if two (non-conjugal) roommates split up acrimoniously. In Australia (and many other countries) you cannot contract out of the court’s having these powers if you become cohabitants.

riffmongous

Great thread

(I'm afraid that's the limit of my contribution)