A Philosopher's Blog

Marriage, A Modest Proposal

Posted in Business, Law, Philosophy, Relationships/Dating, Religion by Michael LaBossiere on October 6, 2011
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Like many people, I got married with surprisingly little understanding that marriage is essentially a financial merger. Unfortunately, this became all too clear when my wife filed for divorce. Although I had made all the payments on the house and had far less debt, I had to buy “her” half of the house from her and ended up being financially broken (but not bankrupt) by this process. Based on my own experience, I agree with William Quiqley’s modest proposal that potential spouses receive a full disclosure of their legal and financial obligations before they have their merger.

His proposal makes excellent sense. After all, people should be aware of their responsibilities when entering into any legally binding arrangement-especially one that involves their entire financial life (or at least a large portion of it). While people are supposed to know about what they are getting into and everyone has heard the horror stories about divorces, it seems that most people do not fully understand the legal aspects of marriage and it is clearly remiss that the state grants licenses without providing such information.

Interestingly, Mexico  City law makers have proposed a bill intended to address the court clogging legal battles between divorcing couples. This bill would require couples to create a pre-nuptual  agreement that would create a contract specifying what would occur if the couple divorces. This would include financial matters as well as issues regarding children. The intent is, of course, to reduce the burden on the courts and allow divorces to be settled quickly. Since the divorce rate about 40%, this certainly makes sense. It also makes sense because the couple would know what their exact obligations will be and they will not be going into a serious financial contract blindly.

One rather controversial aspect of the proposal is that the marriages are supposed to have predicted timed of termination. Couples can, of course, use the traditional termination: “until death do us part” or they can opt for a shorter contract. Since other financial  contracts can have termination dates, this seems sensible enough. Not surprisingly, the Catholic Church in Mexico is outraged by this. However, they have little moral authority from which to argue and the reasons in favor of the bill seem far more compelling than the usual vague appeals to God and family values. After all, it hardly seems to enhance family values to have brutal legal battles over divorces.

The bill also requires couples to take classes about marriage. This also makes sense. After all, people are required to learn how to drive before getting a driver’s license because driving is dangerous. Marriage is also dangerous: as a friend of mine puts it, you have a 50% chance of losing 50% of your stuff. Hence, people should go into that potential disaster with all the preparation they can get.

At this point, someone will probably raise the matter of love and the subject of religion. After all, marriage is supposed to be about love and there is often a religious element.

In regards to love, love has as much to do with the legal aspects of marriage as it has to do with any financial contract: none at all. There is, as people point out, no love test or even a love requirement for marriage. There is often an assumption of love, but this has no bearing in terms of the license. This might seem heartless of me, but you can check into the matter yourself. Lest I be considered a cold beast, let it be known that I think love is great. Like running and friendship, it is one of the great goods in human life. However, people can marry without being in love and people can be in love in every meaningful way without being married.

But, one might say, does not marriage serve to show the ultimate commitment to love? My reply is that people do think this, but marriage is a legal contract that is primarily financial in nature. A person can commit in every emotional way without such a legal merger. But, one might say, how can couples express their love? Well, my obvious reply is that they can treat each other with love and do all those things that show love. In fact, I propose that their be a Love Oath or Union of Love created in which couples can make a (non-financial) bond of love. They can have a ceremony (with cake, of course) and it can even be recognized by the state with a certificate of love. However, it would have no financial or legal aspects to it-it would be pure love.

But, one might cry, what about all the legal rights of marriage? My modest proposal here is actually two proposals. The first is that couples could do the traditional legal marriage with all the legal obligations and rights. My second is that the various legal obligations and rights could be selected and put into a specific contract. It is absurd that the marriage merger is a one size fits all deal when any other contract can be custom made. As such, I propose that a Civil Contract of Union be created that would allow couples to specify the legal aspects of their legal contract. I also contend that many of the rights should be open to non-”married” people. For example, people should be able to designate the people who get to visit them in the hospital. This Civil Contract of Union would satisfy people who marry for the sake of the legal rights and obligations. Naturally, it can be combined with the Union of Love.

Lastly, a religious person might note that nothing has been said about religion and marriage. As I see it, God can sort this out. After all, He is omnipotent so He can make it so marriage works anyway He wants. For example, He could make it so that couples who are not marrying for love are unable to complete their vows or their rings shatter. He could make it so that when same sex couples try to get married, their clothes catch on fire and the wedding cake is consumed by locusts. So, until God says otherwise, we can go with my proposals.

But, one might yell, what about the religious fol? Am I not being a bit of a jerk about this? Surely I cannot be so cynical as to truly believe such things? In reply, I do admit the importance of religion to some people and this should be acknowledged. As such, I propose a third union, the Theological Union. This would be a ceremony designed and conducted by the relevant religious institutions to sanctify unions. It would have no legal status at all (that would require the Civil Contract of Union) but could be given whatever religious significance the religious authorities wished to put into it. They could even make a nifty certificate and there should, of course, be cake. I am sure God likes cake. The Theological Unions also have the advantage that the various religious groups and people who are very worried about traditional marriage can make their Theological Unions as traditional as they like. Since these unions would have no legal weight, those authorizing them can exclude whoever they want and presumably be free of any legal worries (or not, maybe people could sue if a church, for example,  banned white people from getting a Theological Union).

I believe that my proposal provides a rational solution to the marriage problem and one that can make everyone unhappy-which is a mark of a good compromise.

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10 Responses

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  1. Magus said, on October 6, 2011 at 7:01 am

    In my opinion, divorce should not be financially beneficial to either party, and as the system is set up now, there is massive monetary incentive at times to get a divorce.

    Women initiate most divorces. I believe 75% of divorces in America are filed for by women. Women have massive economic incentive to file for divorce; imagine, a woman can divorce her husband, keep the children, collect child support, and remarry someone who makes a decent wage. In no way does a man benefit from this economically.

    Nowhere have I seen self-interest more evident than a female going through a divorce. Ruthless does not adequately describe what they become.

    Good article: http://www.laborlawtalk.com/showthread.php?t=17900&page=1

    Why Women Divorce
    (Letter in Newspaper)

    I am somewhat surprised that Dr. Marmoreo would choose to ignore the
    overwhelming evidence that the ultimate reason for filing for divorce
    is to gain unobstructed power and control over the children and their
    support paying parents.

    Most divorces are initiated by women. By far the most comprehensive
    study on the reasons why women file for divorce was conducted by
    Margaret Brinig and Douglas Allen, both economists.

    They analysed all of the 46,000 divorce certificates, with complete
    data, that were issued during 1995 in Connecticut, Virginia and Oregon.
    Their findings were published in a paper under the title “These Boots
    Are Made For Walking: Why Most Divorce Filers Are Women” (American
    Journal of Law and Economics, vol. 2, No 1, 2000 (pp126-169)

    Though the study was conducted according to the now mandatory “gender
    based analysis” principles (meaning that women have to be found to be
    the losers) the researchers conceded that most divorces are filed by
    women not because of abuse but because they are the ones who have the
    most to gain.

    Dr. Marmoreo would want us to believe that women walk out because of
    violence. In stark contrast to her perception Brinig and Allen found
    that most divorces on basis of the loosely defined term “cruelty”,
    which presumably includes violence, were granted in Virginia, yet
    even there they constituted only 6% of all divorces that were filed
    by women.

    Interestingly,the media reviews that I read used the term “violence”
    instead of the original term “cruelty” (see for example John Tierney
    in the New York Times, July 15, 2000: “Divorce study finds more women
    are doing the dumping”)

    In their draft, dated Sept. 16, 1998 and called “These Boots Are Made
    For Walking: Why Wives File for Divorce”, Brinig and Allen wrote:
    “this paper considers women’s filing as rational behavior, based on
    spouses’ relative power in the marriage, their opportunities following
    divorce, and their anticipation of custody …”

    They concluded: “Our results are consistent with our hypothesis that
    filing behavior is driven by self-interest at the time of divorce.
    Individuals file for divorce when there are marital assets that may
    be appropriated through divorce. Because the heavy investor can’t
    easily move, the other party may be tempted to take advantage of the
    investor…

    We have found that who gets the children is a major component in
    deciding who files for divorce. Divorce, despite its many shortcomings,
    allows the woman to exercise control over household spending when she
    is awarded custody. If the court names her primary custodian, she
    makes most, if not all, of the major decisions regarding the child.

    As custodial parent, she will be able to spend the money the husband
    pays in child support exactly as she pleases-something she may not do
    during marriage [my note: consumer spending related research shows
    that women control the family spending and make the decisions in major,
    as well minor, purchases].

    Finally, though the court will usually have ordered visitation, she
    can exert some control over her former husband by regulating many,
    though not all, aspects of the time he spends with the child. In the
    extreme, she can even “poison” the child against the father.

    By making a preemptive filing, the wife may be able to secure rights
    such as child or spousal support that require court enforcement. When
    the wife files, she is often given temporary custody of the children.
    Temporary custody, like possession, tends to be “nine tenths of the
    law” and plays a role in the assignment of permanent custody,
    especially where the divorce does not occur for some time.

    We also note that no-fault (unilateral) divorce laws apparently do
    two things. They increase divorce filing rates generally, and they
    increase the percentage of women who file.

    The fact that women, more than men, take advantage of the easier exit,
    suggests that a return to a fault-based system will not advance women’s
    goals.”

    This is only one of the myriad of documents which document that in
    order to reduce the number of divorces we need to reintroduce fault
    into divorce, introduce the presumption of joint custody and do away
    with the transfer of money from one household to the next, under the
    guise of child support.

    “Child” supporting itself is a misnomer as it is now equated with
    support to the entire household where the child resides, as defined
    by the Federal Child Support Guidelines and interpreted by Madam
    Justice Rosalie Abella and other judges.

    It is of great concern that even the Globe and Mail, which used to
    at least make an effort to keep away from these kinds of propagandist
    articles, would now join the ranks of the yellow press.
    Sincerely,

  2. Magus said, on October 6, 2011 at 7:02 am

    I think i have a comment stuck in your spam filter.

  3. T. J. Babson said, on October 6, 2011 at 7:57 am

    A long post on marriage and not one word about kids or family.

    I think think this comment from Glen Reynolds is appropriate here: “Ordinary mortals don’t engage in fancy mental gymnastics to reach conclusions that defy common sense. But intellectuals are particularly prone to this.”

    http://pajamasmedia.com/instapundit/129081/

    • Michael LaBossiere said, on October 6, 2011 at 1:56 pm

      Kids are neither a necessary nor sufficient part of marriage. I’d need to write another post on them. However, as far as the legal aspects regarding kids go, that would fall under what I wrote about legal contracts relating to the union.

      As far as families go, it all depends on what you mean. A family can be formed without a marriage and there are marriages in which the “family” is hardly worthy of the designation.

      • T. J. Babson said, on October 6, 2011 at 4:42 pm

        “Kids are neither a necessary nor sufficient part of marriage.”

        And vision is neither a necessary nor sufficient part of photography, but so what? Just as a blind man can take a photograph, someone uninterested in kids and family can get married.

  4. ajmacdonaldjr said, on October 6, 2011 at 10:35 am

    Very rational. So much for love.

  5. Michael Atchison said, on October 6, 2011 at 10:44 am

    If you’re overhauling the system anyway, why not just do away with legal marriage altogether? People could be free to write whatever legal/financial contracts they choose, but the state would not license or certify marriage (and thus divorce) in any way. It would simultaneously end all political arguments about so-called “marriage rights” and restore total control of religious marriage to the churches.

    • Michael LaBossiere said, on October 6, 2011 at 1:49 pm

      It might be too abrupt to take that step right away, given how embedded marriage is in the legal system. However, I am in favor of simply having contracted rights. Once certain conservatives expressed their feigned horror at this, then it would defuse many problems and rob certain folks of a focus of disputes.

  6. Shouldland said, on January 10, 2012 at 6:35 am

    Good call about doing away with legal marriages altogether. Most people I have ever met get married and have kids because it is what they were programmed to do. People learn early in their life that this is what life is about: reach adulthood, get married and have kids to repeat the cycle. Love doesnt seem to be as important (unfortunately).

    Shouldland.com


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