The Parliament will soon consider a private members bill on gay marriage.
Both Labor and the Coalition are opposed to changing the marriage act to allow for same-sex marriages.
…
“I’m calling on Tony Abbott and Kevin Rudd to allow their members to speak freely on the issue and to have a conscience vote. It’s important that our parliamentarians represent the wills and needs and desires of their communities and on this issue more than ever.”
My good friend Tim Wilson has done a lot of thinking in this area, even beating up Penny Wong on national television, and his idea of competitive marriage contracts should be seriously considered.
Put simply, marriage is a contract. The problem is the existing contract is a civil and religious institution in one. Everyone’s contract is the same, but some religious civil celebrants require extra obligations in return for overseeing entry into the contract.
But in arguing for same-sex marriage most gay activists don’t appreciate the significance of marriage to religions. In response, many religious conservatives have bunkered down for the fight. They shouldn’t. The solution is to establish alternative options such as Abbott’s covenant marriage.
Doing so will stop religions having their marriage contracts secularised and government mandating its extension to same-sex couples.
The government can allow multiple marriage contracts. Registering a contract would require meeting minimum standards set by government, and religious bodies could set additional requirements for a marriage to conform to their faith.
I’m increasingly attracted by the idea of private marriage contracts, as long as the default terms are such that they cater for parties fairly.
Legal Eagle
21 Feb 10 at 4:53 pm
So in other words we recognize the right of gay and lesbian couples to marry and the right of religious institutions to have nothing to do with it. Good idea.
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It won’t pass.
Adrien
21 Feb 10 at 5:04 pm
I am a big fan of the state abdicating its role as regulator of the marriage business; so covenant marriages sound interesting. Except we must remember, that marriage predates all the current religious involvement and claims, and that marriage has always had a very heavy ‘social/civic’ element to it.
We do not decry high divorce rates because we are concerned at high rates of contractual breaches or triggering of exit clauses: we decry high divorce rates because of the perceived deleterious social/civic impacts.
Peter Patton
21 Feb 10 at 5:09 pm
the right of religious institutions to have nothing to do with it
There’s something wrong with this sentence. Moreover, there isn’t any reason why religious institutions wouldn’t have their own contracts; what else are those signed after a religious service if not private marriage contracts.
Except we must remember, that marriage predates all the current religious involvement and claims
PP, I think this is historically dubious. I would have thought that all marriage contracts were to begin with religious contracts and least in most tribal and later civil societies.
dover_beach
21 Feb 10 at 5:27 pm
I agree with the approach outlined. In essence it is the same as the LDP policy on marriage.
TerjeP (say Tay-a)
21 Feb 10 at 5:46 pm
Can anyone .. any gay person want to explain why on earth they would want to be bound by the same divorce laws that bound hetros.
Are they freaking crazy?
JC
21 Feb 10 at 5:48 pm
db
Actually, they were much more property contracts. Yes, you are right they always took place surrounded by various rituals.
Peter Patton
21 Feb 10 at 5:49 pm
The basic idea behind this proposal isn’t bad, in principle. In practice, however, the religious end of it will likely backfire. Suppose a couple go for Abbott’s ‘covenant marriage’, opt out of no-fault divorce, etc. The couple will have a serious problem if, sometime down the track, one or both of the parties want to get out of the marriage (or feel less religiously inclined, for that matter).
In the end, gay marriage is inevitable in one form or another. It’s been brought in elsewhere, and the sky has not fallen in. Gay marriage doesn’t actually do any damage to religious marriage, since the various churches/mosques/synagogues will not be marrying many gay couples. On this point, the various religions should be happy that they have a domain largely free from any kind of state censure, and, on gay marriage, should just be told to suck it up.
THR
21 Feb 10 at 6:19 pm
Well Jewish marriages have a standard contract, called a ketubah. There’s provision for what happens on breakdown, which seems very sensible to me. Jews have also had divorces for a long time too (the get).
I don’t know if any of you have read Nudge by Richard Thaler and Cass Sunstein (SL recommended it to me) but it has an interesting section on marriage as contract. I think it’s much better if parties turn their mind to what might happen in various eventualities right at the start. But it is generally the person who looks after any children of a relationship who suffers more financial disadvantage on breakdown of a marriage, so any terms would have to be carefully crafted to deal with that.
At the moment, people can be in a relationship without even meaning to be, or without ever having to consider the ramifications of what they are doing. I wrote a post about the new Family Law Act provisions which give mistresses rights in long term relationships which gives a little description of Thaler & Sunstein.
Legal Eagle
21 Feb 10 at 7:44 pm
I don’t think Abbott was thinking of Jewish law when he came up with his ‘covenant marriage’ idea:
The opposition families and Aboriginal affairs spokesman has called for a return to the fault-based system of divorce discarded in 1975, which was replaced by a “no-fault” system.
Mr Abbott’s plan, outlined in his soon-to-be released book Battlelines, would see a grounds for divorce reintroduced, including adultery, cruelty, habitual drunkenness and imprisonment.
It would be similar to the defunct Matrimonial Causes Act.
Currently people are allowed to divorce after a 12-month separation.
Speaking to Fairfax newspapers, the conservative politician and former Howard government minister said couples should be offered a choice of both marriage systems.
“The point I make in the book is that a society that is moving towards some kind of recognition of gay unions, for instance, is surely capable of providing additional recognition to what might be thought of as traditional marriage,” Mr Abbott said.
http://www.theaustralian.com.au/news/breaking-news/make-it-harder-to-divorce-says-tony-abbott/story-fn3dxity-1225748579056
THR
21 Feb 10 at 7:57 pm
Actually, they were much more property contracts.
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I think that’s a bit of feminist historical revisionism, and an audacious one at that. The theory also goes that romance and love had nothing to do with it, these being modern cultural inventions.
But there are no legs on this claim at all.
daddy dave
21 Feb 10 at 8:28 pm
I was speaking more generally about contract marriage, not Abbott’s particular idea, THR.
Personally, I would not want to make it more difficult for couples to divorce. It’s important for people in abusive relationships to be able to get out of them. My co-blogger SL wrote a post on divorce a while back in which she pointed out the following:
So, while family breakdown can be terrible for those who experience it, there are definite upsides to no fault divorce.
Legal Eagle
21 Feb 10 at 9:50 pm
PP replied to me (inadvertantly in a different thread):
There is nothing “revisionist” let alone “feminist” about it. Their are fewer historical subjects where the evidence is so abundant as marriage arrangements. And the historical record is clear on the role of property in marriage – overwhelmingly via dowries.
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Sure, there have been arranged marriages in various societies and at various times in history. However, love and romance are not modern inventions. Rather, they are an intrinsic, ubiquitous, and innate part of the human experience.
daddy dave
21 Feb 10 at 10:38 pm
Sure, there have been arranged marriages in various societies and at various times in history. However, love and romance are not modern inventions.
There arguably has been different forms of love in different contexts. Greek eros is not at all the same as the courtly love that occurred roughly 2,000 years later, which is itself not the same as what’s around today.
THR
21 Feb 10 at 10:39 pm
THR, there is no cultural difference.
For instance, we now know that “passionate love” is among other things, a biochemical event with a very specific time course.
Different societies have different theories of love, different moral codes, different explanations for it. This often leads people to erroneously believe that they actually have different kinds of love. They do not.
daddy dave
21 Feb 10 at 10:46 pm
Maybe ‘attachment’ or ‘affection’ would be a better concept here. ‘Passionate love’, if memory serves, was a concept conceived and quantified by some 1980s psychologists. Also, even if the biochemical event were universal in all instances, it wouldn’t make every instance the same kind of ‘love’. The biochemistry of fear is probably more universal than that for love, yet running into a grizzly bear isn’t the same as sitting down for a difficult job interview.
THR
21 Feb 10 at 10:49 pm
dd
I agree with you totally that the argument that ‘love’ only became a factor in male/female relations and marriage in the late middle ages is a totally wrong argument. Unfortunately, the great big huge lacuna in the extant evidence is the words, thoughts, and feelings of 99.999% of the population.
Still, even in that most patriarchal of societies – Archaic/Classical Greece – it is not hide to recognize ‘love’ in much of the art and literature. Even in Homer.
Peter Patton
21 Feb 10 at 10:55 pm
THR
The ancient Greeks had at least five words for what we would call ‘love’ today.
Peter Patton
21 Feb 10 at 10:56 pm
DB – There’s something wrong with this sentence.
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Pray tell what exactly? All it means is that religious institutions are free to not recognize gay marriage, not facilititate marriage between same sex partners and the rest of it.
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Moreover, there isn’t any reason why religious institutions wouldn’t have their own contracts; what else are those signed after a religious service if not private marriage contracts.
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Well yeah, and?
Adrien
22 Feb 10 at 10:42 am
Even in Homer
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Especially in Homer: Odyseus, Penelope? Love is natural. Marriage, it could be argued, was originally an artificial mechanism to restrain or even exclude it.
Adrien
22 Feb 10 at 10:44 am
THR, I’m not going to defend the idea that love is nothing but a biochemical event, although that’s certainly in the mix. Obviously it’s more than the mere firing of hormones. However, it is a universal part of the human experience.
daddy dave
22 Feb 10 at 11:02 am
Marriage, it could be argued, was originally an artificial mechanism to restrain or even exclude it.
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There’s a lot of overlap between love and marriage, so it’s implausible that marriage is supposed to be some kind of antidote to love.
daddy dave
22 Feb 10 at 11:02 am
There’s a lot of overlap between love and marriage, so it’s implausible that marriage is supposed to be some kind of antidote to love.
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Remember marriage was for a long time an arranged matter that took into account mostly questions of economics. The way the couple felt about each other, and often they only met at the wedding, was irrellevant. Still is in many parts of the world.
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The assertion of Romantic love from the late middle ages on can be seen as an argument for love over money. And it was resisted for a long time.
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It’s also interesting to take into account the standard story whereby a woman, married or engaged to a wealthy man, falls for a poor guy. There’s too many examples of this story to list. I think Titanic was the last example I saw.
Adrien
22 Feb 10 at 11:25 am
“I’m increasingly attracted by the idea of private marriage contracts, as long as the default terms are such that they cater for parties fairly.”
And for fairies partly.
FDB
22 Feb 10 at 11:28 am
Primates form companionship pairs or assemble harems.
Perhaps they’re instituting a sexist women-as-property cultural norm?
daddy dave
22 Feb 10 at 11:45 am
the right of religious institutions to have nothing to do with it
DB – There’s something wrong with this sentence.
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Pray tell what exactly? All it means is that religious institutions are free to not recognize gay marriage, not facilititate marriage between same sex partners and the rest of it.
Sorry, I wasn’t sure what you meant by ‘it’; that has now been clarified.
dover_beach
22 Feb 10 at 12:56 pm
Adrien,
Sons and Lovers D H Lawrence
Butterfield, Bloomfield & Bishop
22 Feb 10 at 12:58 pm
Isn’t DH Lawrence a little out of bounds for an old evangelical like yourself Homes?
jtfsoon
22 Feb 10 at 1:01 pm
Statman,
D H Lawrence was an outstanding writer with weird social norms and beliefs.
Actually when he wrote about sex he was rarely direct.
If films today were made that way and with little swearing, they would be enjoyable to view.
Butterfield, Bloomfield & Bishop
22 Feb 10 at 1:05 pm
I’ve long thought about writing a post about the property law implications of a rich woman marrying a poor man. The reason why it was so shocking was not just because of morality. It was also because women couldn’t own property, and thus, if there were no sons, the father’s property went to the husband.
Think how many classic stories involve this kind of twist. Pride and Prejudice for example – the Bennett sisters cannot inherit from Mr Bennett, the property is entailed to male heirs, and the horrid religious cousin is in line to get the property instead. Therefore the parents want their daughters to marry men of means not only out of snobbery, but also out of a desire to see their daughters financially secure.
Lucky we abolished entailment and lucky we also allowed women to hold property after marriage.
Legal Eagle
22 Feb 10 at 7:54 pm
Legal E:
Yes but women also don’t really beneath their “station” in terms of where they perceive themselves and usually marry a poor man when he’s much younger than she is and is able to fulfill her desires sexual desires.
On the other hand laws or no laws men are always marrying and have always married beneath their station especially are regards to income differences even now.
JC
22 Feb 10 at 8:21 pm
oops don’t really marry beneath their….
JC
22 Feb 10 at 8:21 pm
Sounds like the best solution to me. Would it allow polygamous marriage?
Tysen Woodlock
22 Feb 10 at 8:29 pm
Oh and I don’t want a polygamous marriage myself I was just curious about that issue.
Tysen Woodlock
22 Feb 10 at 8:30 pm
An aunt of mine said, “I married down. All women do!”
Peter Patton
22 Feb 10 at 8:40 pm
Tysen – sure, just for interest sake. We understand.
Sinclair Davidson
22 Feb 10 at 8:43 pm