NOTE: This work has been ABANDONED as too long-winded and
repetitive, but you are welcome to get whatever you can from it.
The essential ideas are best summarized in a single page.
Most of my new philosophical musings on relationships, etc. are now found in
Kilroy Cafe. —GC, 5/09
Welcome to the Community
The Case Against Marriage - Chapter 2 - 7/19/2007
What is marriage?
This may seem like a complicated question. There are many dimensions to
it: emotional, sexual, religious, cultural, financial. If you ask a
hundred people on the street what marriage is, you are probably going to
get a hundred different answers.
However, if you ask a hundred lawyers the same question, you are
more likely to get a consensus. Under the law, marriage is quite simple:
It is an economic contract to share future income and liabilities.
You can layer on top of it whatever emotional meaning you want,
but what the law sees primarily is a merging of your economic activity.
Under the law, marriage creates a new economic entity called "the
community." It is like a big common pot that both of you are contributing
to and taking from. The exact legal mechanism differs by state and
country, but getting married anywhere implies that you are going to
share your money and property.
In "community property" states like Nevada, the distribution is very
simple and brutally rational. Unless you have an explicit written
agreement otherwise, everything you and your spouse earn "from this day
forth" is going into the community pot, regardless of whose name it is
in. Everything bought with this money is community property that you
jointly own, even if it can only be realistically used by one party or
the other. Conversely, any new debt incurred by one member of the
community is automatically borne in equal proportion by the other.
You may think you still have your own checking account, your own
credit cards, your own clothing and your own possessions, but under the
law, this separate ownership is fiction. The only things you still own
by yourself are those you acquired before the wedding. Everything else,
technically, belongs to the community.
In "common law" states, things work a little differently. In that case,
a married partner can "own" a piece of property by themselves, but
their spouse is still entitled to a slice of it at the time of the
divorce.
At the time of your marriage, you may think of "the community" as
something benign and protective, but it can easily turn into a monster.
Instead of being financially
responsible only for yourself, you are now responsible
for a person who you may have only limited control over. Yes, you can
benefit from their good fortune, but you can also face enormous losses
from their misfortune
that may last long after they are gone.
Financially, marriage can be seen as erasing a firewall of protection
between the two of you. Any disease that is contracted by one is
automatically contracted by the other. If you remained unmarried
and simply shared whatever you wanted, you would incur no such
downside risk. You don't have to be married to someone to
help support them; you just do it.
All marriage adds is the obligation to
support them and to help dig them out of any
bad financial decisions they make
themselves.
You may not fully realize the full significance
of the community until the
time of your divorce. Once the community has been created, the law
has little interest in who contributes what.
If you work hard for ten years while your partner sits on his/her
duff eating bonbons, they are still entitled (in a community property
state) to half of every asset you have earned.
Furthermore, through a special
feature called "alimony," you may be required to pay them a continuing
stipend for any discrepancy in your incomes.
In a worst case scenario, let's say you get married and go to
Las Vegas
for your honeymoon (evidently because
you lack imagination). The day
following your wedding night, your spouse goes on a gambling and buying
spree and maxes out his own credit cards. Unfortunately, his debt is now
your debt, and at the time of your eventual divorce, the outstanding debt
is going to be split 50-50, regardless of who was responsible.
As another example, imagine your spouse gets cancer, exceeds the limits
of your health insurance coverage and starts racking up enormous hospital bills.
You are responsible for those bills even if your spouse dies, whereas
you would have no liability if you had only lived with them and never
married.
At the wedding ceremony, everybody talks about all the good things you
are going to share. No one talks about the bad things. On the upside,
if your spouse gets rich, so do you. On the downside, if your spouse
gets sued, you are automatically the codefendant, and the potential
liability is as unlimited as the potential reward.
The legal concept of shared property was created for good reason.
Once upon a time, the primary purpose of marriage was the raising of
children. Sex was prohibited outside of marriage because it inevitably
produced children, who needed to be raised in a stable and socially
sanctioned environment. Marriage was the joining of a man and a woman into a
single child-rearing unit. The woman stayed at home to manage the
hearth, while the man went out into the woods and brought home dinner.
Even though she didn't actually do the hunting, the woman was
entitled to a share of everything her husband brought home. This was only
fair. It was the woman and her children who were
the most vulnerable. If a wife struggled to maintain her husband's
home for many years, and then the husband struck it rich, the husband
couldn't just say, "See ya later!" The husband's good fortune was
automatically the wife's.
Our current marriage and divorce laws have arisen from this medieval
background, even if the social conditions have changed. The wide
availability of contraception in the late 20th Century totally rewrote
the rules of the marriage game. People today don't necessarily get married
because they expect to have children; instead, they are seeking some
sort of emotional satisfaction.
Whereas procreation used to be a sure thing in most marriages,
emotional satisfaction is much more unreliable and difficult to define.
While children are going to stick around for years, emotional
satisfaction can evaporate in an instant. When it happens, divorce is
expected, and you face the messy problem of dividing up that community
pot.
Once upon a time, people bonded for life. This notion may sound
romantic at first, as though this kind of loyalty was a lost art. Then
you realize that "life" in the supposedly romantic old days was
usually very short and that most people were too busy surviving to
think about emotional concerns. If your expected lifespan was 40 years
and you saw death all around you, then you had to procreate fast.
There may or may not have been period of courtship before the
ceremony, but it was naive and syrupy romance undiluted by the real
experience of, say, living with someone. After the marriage, the
courtship was over, and there wasn't much time for emotion thereafter.
Most people these days are "serial bonders." As the human lifespan
increases and the generation of pre-contraception babies passes on, it
is increasingly difficult to find anyone who is truly "bonded for
life." Instead, people bond for a few years (perhaps believing they have bonded
for life) but eventually fall out of it. This isn't so
unreasonable when people are living 80+ years instead of 40. People can
grow and change, and the relationship that was right in one phase of
your life may not be best for the next.
In the 21st Century,
marriage still persists in its medieval form but with one
very important change: It has been almost entirely separated from sex
and procreation. These days (in most countries) you can engage in
fornication with impunity, no license required, and you can live with your
partner without anyone's permission. You no longer have to wait for your
wedding night to enjoy the forbidden fruit of sex. Now, that fruit is
available á la carte (although it may have gone rotten
from overexposure). Modern marriage, under the law, grants you no
special sexual privileges.
Contrary to popular belief, modern marriage is not a parenting
contract. The real parenting contract, as far as most courts are
concerned, is the child's birth certificate. Regardless of whether the
parents are married, it is the birth certificate that determines who has
parental rights and who is jointly responsible the child's well-being.
If child custody is reassigned at the time of divorce, this is mainly a
matter of convenience: When the economic relationship has collapsed, it
is assumed that the parenting relationship also has.
However you may define marriage, most of its long-term power derives
from the simple sharing of assets and liabilities. Presumably, you are
willing to share your finances because you trust this person and expect to live
with them forever. Once you start down this road, disentangling the
arrangement becomes more and more messy, and this exerts its own
emotional pressure on the relationship. Strictly from a logistical
standpoint, divorce is many times more difficult than, say, preparing
your taxes or catering the original wedding. Your natural fear of this
massive undertaking may be enough to convince you that the relationship is
working even if it isn't.
Since the main
purpose of marriage is no longer the raising of children but
the seeking of something emotional, the big question is whether creating
the community pot really increases the likelihood that your emotional
goals will be achieved.
What is marriage?