Issue #62, 1/6/2007
What is Marriage?
Family Court Philosopher
What is marriage?
It would probably be a good idea to answer this question before you engage in it, would it not? You wouldn't buy a house or take out a loan without reading the contract you are signing, yet people regularly get married without any written contract or any grasp of the legal implications of what they are entering into. It is only at divorce that they find out what marriage was really all about.
Marriage, under the law, is probably not what you think it is. It is not a declaration of love, a cohabitation agreement, a sex contract or a parenting contract. It is much simpler than that.
Under the law, marriage is little more than a legal agreement to share economic assets. After you are married, then all money you make and all money your partner makes get thrown into the same pot, called "community property." If it suits you, you can continue to keep separate bank accounts and identify you own possessions, but this is a fiction under the law. Starting on the day of your wedding, all new income and all objects purchased with it are jointly owned by the community. Likewise, any debts incurred by one party are shared by both, and if your partner gets sued, so do you. Economically, you are now a single unit and have lost your individual identities.
Divorce, in turn, is the inevitably painful and awkward disentangling of this economic union, with the community's various assets and debts being equally redistributed between the two.
Marriage is widely viewed as an essential prerequisite for the raising of children, but this is a misconception. As a parenting contract, the birth certificate is the controlling legal document, with the marriage certificate being nearly irrelevant and granting no additional rights. If two people's names appear on a child's birth certificate, then they enjoy the same parental rights and obligations regardless of whether they are married. Without any court intervention, one or both parents can legally raise the child, sharing the duties in any manner they choose. Marriage changes nothing about this arrangement.
In court, child custody and child support are settled at the same time as divorce mainly as a matter of legal convenience, because if the economic relationship has collapsed, it is assumed that parenting cooperation also has. Marriage and child custody are different things, however. Custody is concerned primarily with whose sperm or womb produced the child and with his future welfare. It is resolved by the court in essentially the same way regardless of whether the parties were ever married.
You may think that marriage is something more than an economic contract, but that's all the law sees. There is nothing in law about loyalty, sexual exclusivity, permanency or the joining of two hearts. All that stuff about walking down the aisle, exchanging vows, a honeymoon, living together, having sex without sin, etc., is cultural, not legal. The law only says that you can't be involved in this economic contract with two different people at the same time (bigamy); other than that, it is up to you to decide what marriage means and how it should change your behavior.
Viewed in these objective economic terms, marriage may seem a lot less romantic. While you are married, your spouse is legally entitled to half of everything you earn, even if they refuse to work. If your spouse maxes out their credit cards or gets involved in a car wreck, you are ultimately responsible for half of that debt and economic liability. Their bad decisions become your bad decisions.
At the time of marriage, the two of you become a single legal unit and lose much of your individual freedom, like Siamese twins joined at the hip. As long as you are cooperating with each other and moving in unison, marriage makes no real difference to the relationship, but whenever you disagree, the union can force you into direct and intimate conflict—like a fistfight between Eng and Chang—because you can no longer withdraw to your prior independent positions.
If the two of you do not get married, you can still choose to share income and debts, but you would do it on a purely discretionary basis. Maybe we agree that this week I will buy the groceries and next week you will. Such active and ongoing negotiation is healthy for the relationship, not detrimental. Every week, we are deciding how close we should be to each other and what we are going to share. Whenever we can't agree, then we each return to our healthy base position of being discrete economic entities. What's mine is mine and what's yours is yours. If the relationship is truly valuable to both of us, then we will regroup, reconsider, then start negotiating again.
Every healthy relationship is an ongoing process of negotiation, not a static institution. No matter how in sync the two of you seem to be at the beginning, significant differences are bound to arise. You want one thing and they want another, and on a daily basis each of you has to make compromises and seek concessions to reach a common ground. This active interchange is the essence—and fun—of a romantic relationship. What gives the relationship its spark and excitement is that you are independent entities who are choosing to come together, not imprisoned together. This energy may vanish as soon as you are merged into one and the choice goes away.
In any economic relationship, you can't give away all of your independence and bargaining power at the beginning and expect the mutual benefit to remain optimal. If you do give away everything, then inequalities and inefficiencies inevitably arise later, and there may be no way to address them. Typically, one marriage partner becomes entrenched in some dysfunctional psychological pattern and resists all diplomatic efforts from the other to get them to change. The situation remains unresolved, because the other partner has already given away most of their effective leverage.
For example, if you love someone but are appalled by their smoking, you are more likely to get them to quit from outside the marriage than from within it. Outside the marriage, you can say, "I love you, but I don't want to be close to you when you smell of smoke." Within marriage, where the comfortable option to pull away has been lost, you will probably be reduced to buying cigarettes for your partner just to keep the peace.
Marriage seems to be based on the theory that if you throw people together in the same prison cell, you are forcing them to work together and their relationship will become stronger because of it. What tends to happen instead is that people lose their dynamic boundaries, replaced by less healthy static ones. Even in a prison cell, people develop fiefdoms. "If you cross this line, I'm going to bite your head off!" If you have no negotiating power over your cellmate and no freedom to withdraw except catastrophically, then that line is probably never going to be moved.
We are all familiar with the romantic notions of marriage: how we are declaring our permanent love, joining our strengths and working together toward common goals. No one considers that underside: that we are damaging love's vibrancy, reinforcing each other's weaknesses, and sacrificing healthy independence.
Under the law, marriage forces the two of you to share all tangible property and risks. In the process, it may rob you of your independent discretion and perhaps the very spark that brought you together.
A Final Observation
What would happen if you bought the ring, had the ceremony, and called yourselves man and wife but never bothered to get a marriage license? Wouldn't that solve a lot of problems?
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Page Started: 1/6/07