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The Negative Side of Governmental Regulation of Marriage

As I just outlined, after serious consideration, I came to appreciate the positive side of having the government regulate marriage. However, there is a negative side to governmental regulation of marriage as well.

"The marriage contract is unlike most contracts: its provisions are unwritten, its penalties are unspecified, and the terms of the contract are typically unknown to the contracting partners.

...No state ever asks prospective spouses if they are willing to assume the duties, rights, and obligations their marriage contract specifies. It is simply assumed that everyone who gets married will abide by the state-imposed unwritten contract known as legal marriage.

...It is only when they begin to disagree about their respective obligations or try to make arrangements for their responsibilities after divorce that they discover, usually upon consulting their respective lawyers, to what extent their freedom to decide their own fate is restricted by the terms of the state-dictated marriage contract that is codified in family law.

...There is the further irony that many of these same couples will discover that the unwritten contract that governs their relationship is based on outmoded assumptions about the family, assumptions often contradicted by the reality of their own experience but nevertheless applied to them by law.

Lenore J. Weitzman, (1981) The Marriage Contract: Spouses, Lovers and the Law. New York NY: Macmillan Publishers, pp. xv-xvii.

After reading Ms. Weitzman’s book as I was writing this chapter, I contacted a court magistrate who performs many civil marriage ceremonies to ask him for a copy of a standard marriage ceremony. These are the vows the magistrate sent me.

"Do you take this woman/man to be your lawful wedded wife/husband? And do you solemnly promise before these witnesses, that you will love, honor, and cherish her/him; And that forsaking all others for her/him alone, you will perform unto her/him all the duties that a husband/wife owes to his/her wife/husband, until death shall separate you?

"_____ I take thee to be my wedded wife/husband, to have and to hold, from this day forward, for better or worse, for richer or for poorer, in sickness and in health, to love and to cherish, till death do us part."

"Will you receive this ring as a token of ______'s affection, sincerity, and fidelity, and will you wear it as a symbol of your own affection, sincerity, and fidelity toward him/her?

When I read these vows, I definitely had to concur with Ms. Weitzman that the “marriage contract” is basically invisible to the parties involved. As you can see, these vows consist of flowery, poetic proclamations of eternal love. There is virtually nothing in the vows which conveys, in concrete terms, what the legal rights and responsibilities of marriage are. I had to laugh when I read the part which states "Will you perform unto him/her all the duties that a husband/wife owes his/her husband/wife?" I was thinking as I read it, how great it would be if someone would pipe up in the middle of one of these ceremonies and say "By the way, Your Honor, would you mind clueing me into exactly what these duties are, before I say 'I do' ?" I'm sure this never happens. People are conditioned to get married with "no questions asked", and have faith that everything will work out. Therefore, the actual "contract of marriage" that people enter by stating these lofty vows of eternal love to one another is not known to couples when they marry.

When couples marry they are agreeing, without realizing it, to be governed by what you might call a "onesize-fits-all" marriage contract. The word "contract" is a misnomer here because there is no marriage contract per se. Married couples are governed by volumes and volumes of state statutes. Let me attempt to list the most important legal ramifications of marriage. This is a gross oversimplification of the volumes and volumes of State law pertaining to marriage (which of course differs in each state) but I think this summary is adequate for the sake of this discussion.

Legal Marriage creates the following rights and entitlements:

  1. The right to automatically inherit one another's complete estate.

  2. The right to make all medical decisions on one another's behalf.

  3. The right to possession of one another's body after death, and the right to determine body disposition and funeral service.

  4. A marital partner has the right to an equitable share of all monies, properties, capital gains of any kind (i.e., retirement benefits, royalties, stocks and bonds, etc.) acquired by his/her partner during the duration of the marriage or converted to joint ownership during the marriage.

  5. A marital partnership must be formally dissolved in a court of law. Though either spouse may initiate a divorce for any reason, at any time, the procedure must be legally monitored. Partners may not dispose of any of their personal properties until they receive a formal divorce settlement dividing all the properties of the marital partnership.

  6. A wife is entitled to be financially supported by her husband during the marriage and is sometimes entitled to alimony benefits after the marriage.

  7. A husband is entitled to have his wife perform (unpaid) domestic labor to maintain the family household and provide for the needs of the children.

Please Note: Child support is required whether a man is married to a woman or not, so I am not including it in this legal definition of marriage.

Obviously #6 and #7 listed above are outdated. Some women make more than their husbands these days, and some husbands and wives have similar earning power. I think it is unclear to what extent the courts currently enforce these two provisions of the marriage "contract". Alimony is less and less common and occasionally wives have to pay it to husbands. However, there are still some traditional marriages where the husband is the major breadwinner and the woman a stay at home mom, so these statutes may still be applied in some cases. The main two legal aspects of modern-day marriage that couples need to be concerned with are #4 and #5: the provisions having to do with how the financial resources of each partner will be divided up if the couple divorces.

Marriage communalizes the financial resources of the husband/wife. This automatic merging of resources can be a very good thing. These laws were created to protect people. Their main purpose originally was perhaps to protect a woman's interest in the marital estate because her contributions to the marriage were economically invisible. This need to protect a homemaker’s financial interest is still relevant today in some marriages. It is also true that the need to protect both marriage partners’ interest in one another’s financial assets goes beyond the issue of childrearing. Oftentimes in a marriage one partner financially supports the other while he/she pursues an endeavor that will later bring financial gain, i.e., getting an advanced educational degree, writing a book, building a business, etc. People often relocate to accommodate one partner’s career. In general, marriage partners, particularly in long term marriages, tend to merge their lives in lots of ways that have financial implications.

However, the degree to which couples merge their lives/and finances varies tremendously in this day and age. Some couples do not raise children together and therefore a homemaker's needs/interests do not need to be taken into consideration. Some people are simply very independent people and prefer to create a marriage where each person retains complete ownership of his/her financial resources. Second marriages are also now very commonplace and this often means that both partners come to the marriage with substantial financial assets and established careers and do not want to merge assets after they are married either.

Given the diversity of marriages today, it is ridiculous to think that there can be one marriage contract to meet the needs of every couple. Couples need to be given the right to contract with one another regarding how much financial merging they want to have in their marriage.

Fortunately, there is now a way for people to create a legal marriage that is not bound by the traditional state laws which stipulate that all the financial resources of the couple will be merged. Prenuptial agreements allow couples to override state statutes about financial merging.

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