Michael Eriksson's Blog

A Swede in Germany

A new take on marriage

with 2 comments

I have for some time contemplated topics around marriage, including the conflict between a “civil” and a “religious” take, the problem of “same-sex marriage”, the arguable arbitrariness and/or antiquatedness of marriage, how divorces should be handled*, issues around pre-nuptials, issues around common-law marriages, whether restrictions on polygamy are valid, … A very important topic has been expectations,** and the problems that ensue because too many enter marriages with unrealistic expectations or expectations that have not been discussed sufficiently with the partner in advance.

*Mostly concerning questions like who gets what on the cost of the other party, especially with an eye on the high rate of divorce and the extreme societal changes since the still prevailing norms originated. (Notably, that a woman without a man has plenty of opportunity to earn money of her own—and usually already does.) However, also with an eye on whether divorce should be allowed, in light of the high promises usually made during the wedding (and, to a lesser degree, religious bans).

**Cf. a text on poor decision making [1], which can be valuable in understanding some of my motivations for the below. See also an excursion towards the end.

My solution sketch* to take care of most of the related problems in one stroke:

*There would be many details to clarify, and possibly changes to make in light of practical experiences. Indeed, for reasons of time, there are some sub-topics that I have left out entirely, e.g. inheritance regulations and the rights of children. (Not to mention an unknown number of sub-topics that might simply not have occurred to me…)

  1. Marriage in its current form is deprecated in favor of a regular contract between two (or more*) parties that details their respective rights, responsibilities, if/when/how the union** can be dissolved**, etc. (With the option, cf. below, of having this union “upgraded” through a religious confirmation.)

    *For the sake of simplicity, I will base some examples and discussion on a specifically two-person or a specifically man–woman constellation. This should not be taken as a restriction on the generality of this scheme.

    **In this text, I will use “union” and “dissolution”/“dissolve” to refer to the new and contractual quasi-marriages resp. a “divorce”; however, this is for the convenience of this text alone, and should not be seen as a prescription of terminology (unlike the next item). Note that this use of “dissolution”/“dissolve” does not necessarily imply that the contract is ended—just the quasi-marriage phase and the rights and obligations applying during that phase.

  2. Words like “marriage”, “married”, “matrimony” are reserved for contracts having a religious confirmation (cf. a later item and an excursion towards the end).

    Terminology is otherwise outside the scope of this text, “marriage” etc. being special cases needed to separate the quasi-magic of marriage from mere union (cf. below). However, it might make sense to avoid “wife”/“husband”/“spouse” (absent a religious confirmation) in favor of “partner”, “life-partner”, or similar; “divorce” is another word which might need to be restricted in meaning.

  3. There would be a considerable leeway in how to construct this contract, it would fall under regular contract law*, and legal special treatment should be kept as low as practically possible. However, some contents would always have to be present, ensuring that all situations and questions that will often arise in a marriage are addressed sufficiently.** This will include e.g. matters of sex***, children****, dissolution*****, and penalties/reparations in various circumstances.

    *With the implications that (a) most or all of current marital law would be rendered irrelevant, (b) there might be means of dissolution, reparations, whatnot exceeding those specified in the contract (e.g. in the wake of a severe breach of contract).

    **To ensure this, there would likely be various forms of extensive contract templates provided by the government, specialist lawyers, religious organizations, or similar, which would mostly involve a series of choices between certain pre-defined alternatives—including choices on matters that are somewhat less likely to occur and are not legal prerequisites. (The more effort put in here, the better; cf. the excursion on expectations.) However, the parties would, obviously, be perfectly free to not use such a template.

    ***E.g. to what degree and under what circumstances either party has an obligation to have sex with the other, and whether the parties are promising monogamy.

    ****Notably, if, when, and how many are intended; who will be in charge of what; what major changes are agreed upon in the eventuality of a child (e.g. career changes, move from inner city to suburbia, …); whether to home-school; … (For natural reasons, such plans are quite likely to require adaptation over the time-spans involved, and it will likely often be preferable to state sets of mutually acceptable alternatives. Of course, as with any contract, a mutually agreed amendment is always possible.)

    *****If, when, and how; according to what principles assets are to be divided; whether an alimony will be paid (how much, to and by whom, for how long); ditto child support (but see below); issues of child custody; … It will make great sense to formulate this in abstract and general terms, e.g. not as “X will pay Y an amount of […]” but as a listing of conditional circumstances, depending e.g. on who earns more and by how much. For instance, a highly successful business owner should not promise a blanket five grand a month, and be left with a crippling payment when the dissolution was proceeded by the business’ going bankrupt. A better regulation would be e.g. the smaller of five grand and 20 % of the difference in respective after-tax income, going to the lesser earner (all measured in the respective post-dissolution month).

  4. The courts and the government would (except as restricted by ordinary contract law and general legal considerations) be bound to accept the regulations made in the contract. In particular, a court would absolutely, positively not be allowed to reject the “pre-nuptial” parts of the agreement by using subjective fairness criteria (e.g. based on “social justice” or that someone “has grown accustomed” to a certain standard of living, cf. excursion below); in the light of a sob-story (“I need to X—I can’t be expected to work”) ; or based on who needs what (“I have bills to pay, and earn too little”), except as per the following item.* In particular, in light of modern divorce rates, an abuse of alimony to avert costs (social security, unemployment benefits, whatnot) from the government is not acceptable (cf. an excursion on obligation to support). Courts would, however, have the right to make adjustments in light of reasoning applicable to any other contract.**

    *Note that these arguments and examples apply equally to both parties: We could have someone wanting to “ride the alimony pony”; we could have someone trying to shot it. What is agreed is as binding for the prospective recipient as for the prospective payer—just like with any other contract.

    **I can think of no good “pre-nuptial” example at the moment, but chances are that they exist.

  5. The restrictions on matters relating to third-parties, criminal acts, whatnot that are present in ordinary contract law would obviously apply. For instance, the contract could not oblige the government to continue paying pensions of a deceased party to a surviving party;* an agreement to circumcise a child would not be valid in a jurisdiction where this is illegal; in case of divorce, the rights of a child, as a non-party to the contract, might to some degree** trump the contractual agreements.

    *Which is not to say that “pension sharing” mechanisms are forbidden—just that the parties cannot one-sidedly impose their will upon third parties. Exactly how pensions should be handled is too big a question for this text, but possibilities might include a separate contract between the parties and the government, a legal right for several individuals to have a joint pension account with the government, a move of all pensions to private enterprises with a wider range of contractual agreements possible, … Note that e.g. such a joint pension account would not necessarily be limited to parties of a union, in keeping with the philosophy that there should be as little special treatment as possible. (Whether such accounts would regularly make sense in other situations, I leave unstated.) However, the government must not impose rules like those common today, where pensions are automatically shared under some set of circumstances and never under any other set. That would not only violate the principle of as little special treatment as possible, it would also threaten the general applicability of the system, and re-introduce some of the complications I deliberately try to remove.

    **The extremely far-going interventions that are common in e.g. the U.S. today are out. (Say that the court overrides who should “have the house” or decides on child-support, let alone alimony, in an arbitrary manner.) However, possible examples do include e.g. altering custody agreements in severe cases of parental unsuitability and granting additional child-support to ensure that the child’s/children’s standard of living reaches the existential minimum or some defined-by-legislation (not court!) “conscionable” minimum. (But I stress that only the living standard of the child(ren) is covered—not of the custodial parent. Moreover, that this will be academic in most cases, seeing that such intervention requires the four simultaneous conditions that custody is not sufficiently shared, that the custodial party is very low on money, that the non-custodial party actually can cover the difference, and that the contract did not already make sufficient provisions.)

  6. Such contracts may contain provisions regarding religious confirmation, e.g. that the contract becomes binding with the performance of a “church wedding” or another type of official blessing (rather than e.g. the act of signing). In such cases, the performing church* is, obviously, entitled to impose additional constraints and conditions for agreeing to give this confirmation. (Should these constrains and conditions be irreconcilable with the main contract, the parties must either modify the contract sufficiently to please the church or forego the confirmation.) This includes even strong** restrictions on divorce, bans on infidelity, bans on contraceptives, and similar; however, nothing that potentially violates the rights of third parties, notably the children of the marriage. The decision whether to marry e.g. homosexuals or more than two spouses rests solely with the church.***

    *Here and elsewhere used as a catch-all for the religious organization or entity involved, with no implied restriction to Christian churches.

    **How strong, I leave open for now. One possibility would be that the parties are considered married and must present themselves as such towards other parties, even in the event of a dissolution of the union. (Married, but separated.) Certainly, the church should have the right to refuse the blessing of any future union involving one of the old partners. A complete ban on dissolution would be fine on paper, but might prove incompatible with both the application of regular contract law and the realistically implementable.

    ***As it must: Those rejected have no legal disadvantage from any church restrictions, and they have no right to enforce their own religious views upon others. If worst comes to worst, there is always the chance that “church shopping” will find them someone more cooperative.

    Similarly, a contract might be complemented by a religious confirmation at a later date, with the same constraints applying.

    A religious ceremony without an associated contract would be fairly pointless, even frivolous, and is likely best considered a void act. However, there is no reason why a church would not be able to offer an own contract or contract template, to be signed in conjuncture with the ceremony, in order to create the same effect as one of today’s church weddings.* (However, I strongly recommend the parties to go through a more careful process of contract negotiation.)

    *With some reservations for jurisdiction. In e.g. today’s Germany, a church wedding has no legal/secular effect on its own, and requires a corresponding additional civil ceremony.

  7. In addition to the regular right to make mutually agreed upon alterations, some provisions for mandatory re-negotiation might be present to allow for adaptions due to changing circumstances over a prolonged time period. (If no corresponding law exists, it could pay to voluntarily include such provisions in the contract.)

    It might even make sense to divide the overall agreement into contractual stages, with a first basic contract defining the general frame-work and the matters currently needed, with only a rough sketch of future events, possibly in combination with a time-limit, while additional concerns are addressed in separate contracts as they arise.

    We could e.g. imagine that a couple sets up a contract for a “trial-union” for the following two years, with no mutual obligations in case of a break-up, a resolution not to have children, and a stated intention to either go separate ways or negotiate a more permanent contract, with provisions for children, at the end of the trial period. Half-way through the trial, they decide to pool their money to buy a car, the future of the car is put in yet another contract (or a contractual amendment), valid until the end of the trial period and with provisions for a break-up. Shortly before the end of the trial period, they decide to make matters permanent and draw up a full contract, superseding the previous two, for the indefinite future, regulating everything between themselves in reasonable detail, and make a very rough sketch concerning children. Another two years later, a pregnancy occurs, and further regulations for the future of the child are made.

    This procedure keeps most of the advantages of predictable expectations, and forces the parties to spend thinking time corresponding to the seriousness of their relationship; while reducing the risk of over-, under- or faulty specification based on poor assumptions (e.g. because of new information about the other party) and of unnecessary work (if they broke up after two years).

    (The treatment of this area is a little parenthetical, as I set out to find an alternative to marriage, and this was just an off-shot of the main idea. It is possible that this would turn out to be the main way to proceed; it could equally just be an overly bureaucratic way of co-habiting for two years.)

  8. These contracts and their parties would not be subject to the special treatments that often apply to today’s marriages. For instance, an obligation to cover the other party’s debt in case of bankruptcy would only exist if so stipulated in the contract, there would/must not be a need to e.g. make “married/single” choices in various forms, etc. In those few cases where there is some legitimacy to such concerns, other means need to be found (in the case of a loan, e.g., that any prior legal bankruptcy cover by the other party is replaced by an explicit co-signing).

    (While this should not, per se, be a problem, there could be considerable transitional issues due to various systems being to narrow-mindedly focused on the married–single (or e.g. married–single–co-habiting) division.)

  9. To avoid ambiguity and word-against-word situations, these contracts have to be in written form. Further, to guarantee the security of others, they have to be both notarized and semi-publicly* registered.

    *Exactly how, I leave open. The point is that anyone with a reasonable right to know, e.g. a prospective contract partner, can get sufficient information to avoid problems like involuntarily being part of a bigamy-like situation. (I am uncertain whether multiple parallel unions, with the consent of everyone involved, might be allowed. A single union of more than two people certainly is.) At the same time, privacy and other concerns could imply that the details of a contract are not made publicly available.

    As a consequence, if someone enters e.g. a co-habitation without a corresponding contract, no “marriage-like” rights will be granted—no non-voluntary support, no alimony, no “half of yours is mine”, … * In particular, this makes common-law marriages non-existent (in a legal sense); however, this should not be a problem, because the greater ability to shape the contract makes the leap implied by a union (potentially) far smaller, and the resistance that some might have against moving from a co-habitation to a marriage (resp. union) is reduced correspondingly. Indeed, in the new scheme, it is possible for a couple to choose “how married” they are, and increase their degree of commitment and mutual obligation when they feel that the time is right—a union is not the type of either–or deal that today’s marriage is.

    *However, some situations that already are problematic will remain so, e.g. if the parties disagree on who bought something and none has proof.

    (Yes, there will be additional costs involved compared to initiating a current wedding. These, however, will be dwarfed by the average savings due to smoother divorces.)

Excursion on expectations (and work needed):
This type of contract implies a lot more work and thought than is needed for a current marriage. However, this is part of the point of the system: The work and thought helps the parties to have a better idea of what to expect—and of what the other party expects. They have a greater chance to discover in advance whether they clash on important future issues, to willingly make compromises now rather than unwillingly later, etc. There will be no* issues of “I took it for granted that you would X, but you did not”, because the other party will either be aware that X is expected or will have made clear in advance that X is not likely to happen. See [1] for some discussion of related problems.

*On major points or points of such personal importance that one of the parties ensured a contractual regulation. There can, obviously, be no guarantee for every triviality that arises; however, trivialities are trivialities.

Indeed, I hope that this system would increase the proportion of unions that end up being for life, compared to today’s marriages, even though they seem more ephemeral on paper. (And the more work is put in, the greater the chance of success—and the more work necessary, the lesser the risk of a frivolous union.)

Obviously, this type of work is not a replacement for informal discussions during the earlier parts of the relationship (unless an arranged marriage, cf. [1])—it is a complement. However, as such a complement, it has the advantage of both keeping the result in writing and of forcing the parties to go through lists of issues they might not have thought of. (The aforementioned contract templates would, with years of experience, be sufficiently detailed as to include many eventualities not present in informal discussions.) To boot, it can force a discussion that would otherwise be ducked or turn the perspective of the discussion around. A good example is the stereotypical treatment of pre-nups in fiction: The rich man gives the broke woman a pre-nup, she freaks out over the fact that he can even contemplate the end of their relationship, and the pre-nup usually goes unsigned, because he does not want to upset her. (With some variations, e.g. the groom’s mother shoving it down the throat of the bride.) With contracts like the above, we have the reverse situation: Not only are the parties expected to discuss such issues (and know that they are expected to do so!), but the chairs are now turned: The party who is keen on ensuring a share of the others property or a large alimony payment, should the union end, is the one who has to insist on discussing the eventuality of the end. (And overblown demands give the other party a chance to reconsider in time whether to go through with the union. In today’s system, in contrast, overblown demands would only manifest when it is too late to reconsider.)

Excursion on romance:
True, all of this is terribly unromantic—but then a too strong focus on romance and too little on common sense is another problem with modern marriages. See [1] again.

Or so I thought at a very early stage of writing this text:

By now, giving it one last read through before publication, I am not certain that “this” (i.e. discussions/negotiations and whatnot) would be unromantic. Done the right way, at least parts of it could be made quite romantic, e.g. as a series of discussions of hopes, dreams, and plans over candle-lit dinners. It might conceivably even be a cause of nostalgia thirty years later (assuming that things work out).

I actually see a danger of the opposite problem—that various “industries” (notably, the wedding industry) will abuse the overall system to earn money through pumping the romance and whatnot factor, albeit mostly in other areas. Consider e.g. a union with a relatively low commitment: A perfect opportunity to lobby them for a second proposal, a bigger diamond, and a second “wedding” as a deeper commitment is made. Five years later: Why not throw in yet another proposal, an even bigger diamond, and a church wedding? (On the bright side, there is always a chance that the greater number of events will reduce their individual value to the point that no-one will bother.)

Excursion on existing marriages:
The question of how to handle existing marriages is tricky. Off the top of my head, the two main suggestions would be to either “grand-father”* them or to force the couples into corresponding contracts**.

*They remain unchanged and in the exact legal situation as earlier. (But with no possibility for a new union to reach the same status.) The two systems would then partially co-exist for a number of decades. Provisions should be provided for those who volunteeringly wish to convert their “old-type” marriage into a contractual union or (should a religious confirmation already be present) “new-type” marriage.

**With the state providing a “default contract” that is guaranteed to leave them in the same situation as before. This default contract might be voluntarily used or replaced by a contract of the parties’ choosing (within the above restrictions). Should the parties fail to reach an agreement within some time frame, the default contract would automatically become binding. Regrettably, there might still be need for a partial grand-fathering in order to cover e.g. pension issues.

Excursion on religion and marriage, the word “marriage”, etc.:
A fundamental observation is that marriage only has quasi-magical properties (going beyond e.g. a mere co-habitation or a mere contract) in a religious context. There might be legal differences between e.g. a marriage and a common-law marriage (in the current system); however, the corresponding laws have no “higher”, “moral”, whatnot weight—they are arbitrary. Similarly, under the suggested system, it makes no sense for two atheists to try to move from union to marriage, and it makes no sense to have a “civil” version of a marriage beyond the union.*

*Note that the new marriages would, outside “canon law”, have no legal effects beyond a union: The wedding is a religious (and/or religiously symbolic) act and the marriage has a religious nature. Its implications are religious, not legal. Similarly, there are no symbolic secular implications present than are not covered by a union with an appropriately formulated contract.

In a religious context, under the assumptions of the religion under discussion*, this is different; and a view of marriage as e.g. a “divine institution”, something having or requiring a divine blessing, or similar, moving marriage to an entirely different level, is perfectly possible. The suggested system respects this, “demuddles” the confusion caused by the perceived transfer of similar values to civil ceremonies, and differs clearly between the legal aspects of a union and the “divine” aspects of a marriage.

*Something which must be considered from the point of view of the respective religion, organization, believer, … That others might reject these premises is irrelevant. (I, for instance, belong to the atheists. As such, I am free to consider e.g. a church wedding a waste of time; I am not free to restrict the implications that, say, two Catholics and the Catholic Church draw from a Catholic church wedding, at least as long as no third-parties come to harm.)

At the same time, this prevents undue restrictions on non-believers and members of other churches/religions: The most important part of freedom of religion is the right to freedom from religion. For instance, if two homosexual men form a union, this is a business transaction—not a holy sacrament. Protesting against this business transaction on religious reasons would be entirely amiss. On the other hand, whether a given church is willing to raise the union to a marriage is up to it—as is whether it would recognize the corresponding act by another church.

Excursion on the states’ role:
One of the major advantages of this scheme is that it largely puts the state outside the equation: It is no longer in a position to make restrictions* on who is allowed to enter unions/marriages; nor is there a need for it to be. It can no longer control the rights and responsibilities of the parties in undue detail. Its ability to unduly interfere in private matters is reduced. Etc.

*However, note that the application of regular, non-marital, law will imply some amount of restrictions, including the inability to enter such a contract before reaching the age of majority.

Some countries, notably Germany, deliberately try to promote marriage through artificial incentives, e.g. potentially considerable tax breaks (at the cost of the rest of the population). Combining these with a more varying system, like the above, would be quite tricky. However, frankly, I do not give a fuck about this complication: I consider such incentives to be grossly unethical (towards those not benefiting), severely and unfairly discriminatory, and counter-productive to boot*—and I would positively welcome their removal! (However, there are likely other, legitimate, issues relating to taxation and similar that need to be addressed before an actual implementation. Exactly which will depend on the country in question.)

*I have a text in planning that will address this.

Excursion on what and how to regulate:
What and how to regulate will differ depending on whether we speak of what happens within the union or of what happens after or relating to its dissolution. In both cases, however, it is important to regulate in advance, to ensure that the parties know what they can expect and to increase the probability of regulations based on fair principles and symmetry.*

*As opposed to what is the more self-serving when an event actually takes place. For instance, it increases the chance that a regulation for alimony does not involve “Mr. Smith pays the former Mrs. Smith”, instead using e.g. the principle that the party with the higher income pays the party with the lower income. Even a highly selfish or self-centered Mrs. Smith might be agreeable to the latter at the beginning of a marriage (be it because Mr. Smith was the higher earner at the time or because she had no reason to be selfish at that stage), even though she might have a very strong preference for the former when the marriage did end and she was the higher earner.

In the former case, we have the advantage that the parties are usually still on speaking terms and willing to cooperate, implying that a mistake in regulation (e.g. something left out, or an area where preferences have changed) can usually find a retroactive and amicable resolution.

Here the aspect of regulation is secondary to the aspect of learning something about oneself, the other party, and the respective preferences in advance. A contractual regulation, per se, will mostly serve to avoid issues like memory lapses or someone changing positions, leaving the other party in the cold. For instance, assume that the first party promises the second that there will be children, that the second party agrees to a life-long commitment on this basis, and that the first party later reneges on this promise (either through a change of opinion or because the original promise was dishonest). Having a written commitment severely reduces the risk of dishonesty and gives the second party a means of legal enforcement* when it was a later change of opinion.

*However, since such enforcement would often, directly or indirectly, lead to the dissolution of the union, it might be more a matter of reparations than of actual compliance. Then again, even the knowledge that there is a risk of enforcement might make the first party sufficiently cooperative, implying that enforcement is not necessary—and make the first party be much more careful when negotiating the original contract!

Exactly what to regulate will depend on the people involved, but definitely should include everything major (see above for some examples). In the spirit of the principle, more detail is better, within what time and effort allows; however, this will still leave the vast majority of all minor issues open—this is not a a room-mate agreement by Sheldon Cooper*.

*Sheldon Cooper and his room-mate agreements show how not to do it. The general idea is partially overlapping and not necessarily a bad one; however, there are at least two crucial differences: Firstly, he uses them to more-or-less unilaterally force others to follow his rules, with no negotiation and no development of expectations. Secondly, they appear to be fraught with (for my purposes) undue detail, e.g. what exact room temperature to have. Both are quite contrary to the intentions outlined here.

In the latter case, we can no longer make positive assumptions and it is important that all regulations are sufficiently detailed that there will be no major room for negative surprises*, disagreement about interpretation, important eventualities left open, whatnot.** Notably, it is the duty of the parties to find a mutually acceptable regulation, without relying on laws for unregulated cases—where no regulation has taken place***, the laws should make no additional imposition compared to e.g. two platonic friends who shared an apartment for cost reasons.**** Fortunately, the greater need for detail is offset by a smaller amount of items that need regulation. Unlike above, calling for legal enforcement will not risk the (already lost) union, and enforcement is less fraught with danger.

*In terms of regulation. Negative surprises like one party going broke and needing support, instead of providing it, cannot be ruled out.

**But note that the intention is not to go into such detail that e.g. every single possession and asset to be divided is listed (although the more valuable ones probably should be, e.g. cars, houses, stock portfolios). The more important point is to have a sufficiently clear regulation of the principles for how the division should be made, that both parties, unless obtuse, will be able to deduce approximately the same division based on the principles, and that a court, should it be called upon, would also deduce approximately the same division.

***If this is at all possible, seeing that the law should insist on sufficient regulation of principle in the first place.

****With some reservations for special cases that are not at least theoretically applicable in both cases. However, I can think of none off the top of my head. Even children are something that could result accidentally between friends (of different sexes), e.g. because of a drunk night where the platonic aspect temporarily was out of effect. Correspondingly, the law might provide explicit default regulations for children, but it would do so with an eye at non-Unions.

Excursion on non-sexual, non-whatnot relationships:
While the above is written with an eye on replacing current marriages, much (barring religious confirmation, possibly all) of it could trivially be generalized to types of union or partnership without a sexual, romantic, whatnot component. Examples include the stereotypical two spinster sisters and temporary cohabitation by students.* Performing this generalization would be well beyond my purpose, but I have no objections should an implementation or future extension by someone else do so. (In the spirit of minimizing special treatment, it might even be recommendable.)

*I do not claim that it would actually be worth the trouble in such cases. However, the framework would allow it, e.g. in that the students stipulate only minimal mutual obligations, put “no” in the virtual check-boxes for sex, children, “alimony”, …, and include an automatic termination clause for those who move out.

Excursion on standard of living:
A patent absurdity of many current takes on alimony is that the standard of living during the marriage should be at least approximately preserved. This is problematic from both a pragmatical point of view and from a fairness point of view.

Pragmatically, it is considerably more expensive to have a certain standard of living when single than when part of a couple. (And in the case of the ostentatious or fiscally irresponsible, it might be entirely unrealistic.) For instance, having two houses or two apartments usually costs far more than having one house or one apartment (even should the two be smaller in size). The couple might have gotten by with one car; the singles might need one each. Buying and cooking once for two is cheaper than doing the same twice for one—and the extra effort per head might make it more sensible to buy more pre-cooked food, driving up the monetary cost further while lowering the quality. Staying in a hotel during a vacation will cost almost as much for one person as it does for two sharing a room. Etc. In effect, if the first party is to provide sufficiently for the second to ensure (still usually) her standard of living, it will imply compromises for (still usually) him, e.g. in that his own standard drops, that he needs more income, that he is unable to put aside the intended amount of money for his old age, whatnot.

Fairnesswise, it will often* be the case that the supported party sees a disproportionate or undeserved gain compared to a scenario where the marriage did not take place. Consider** e.g. a multi-millionaire marrying a woman with few prospects but a lot of beauty, moving her from a poorly maintained one-room apartment to a six-bedroom house with a pool and two garages, turning her from a receptionist to a leisurely lady with a house-keeper: If the marriage falls apart within, say, five years, would it not be fairer for her to be thankful for those five years of luxury and go back to her old life without complaint? (Possibly with some upgrade, but with no luxury and with the need to go back to work.) What has she actually done to deserve a continuation of a similar level of luxury?

*Among those cases where “standard of living” is an argument that will have a major impact on alimony. Browsing some pages on U.S. alimony, a generic “[maintain old] standard of living” criterion is not unusual, but in most cases e.g. a “[maintain a reasonable] standard of living” criterion would lead to the same result—if in doubt because the old standard was “ordinary” and the respective earning powers of the parties are not worlds apart. (In contrast to the above.) This version is considerably less unreasonable, less likely to be abused, and not necessarily something that I would have a problem with.

**I do not claim that all current jurisdictions and judges would grant alimony in the given example. The point is rather to demonstrate unfairness on a very clear-cut example, and thereby illustrate weaknesses of the “standard of living” argument.

Excursion on obligation to support:
A proposed* natural or moral obligation for the one spouse (of a regular marriage) to support the other post-divorce hinges on the premise that the marriage was supposed to last for ever, that both parties were set on this, that both parties were willing to endure “sickness”, “bad times”, and whatnot without wavering from the marriage. In light of today’s divorce rates, the general acceptance of “no fault” divorces, etc., this premise obviously no longer holds.** A divorce is no longer a rare event caused by gross misbehavior of one of the spouses—it is a perfectly normal and common end to a marriage. To boot, the termination of the marriage is most often called for by the woman, who still is the party more likely to receive support, making a mockery of any such obligation.

*The ethics of rights and obligations is a tough area, and I do not necessarily consider this obligation a “natural law” even when the discussed premise is fulfilled. (Neither do I necessarily reject it.) The same applies to child-support below. However, I do consider the premise, or on the outside some variation of this premise, a sine qua non for an ex-spousal obligation.

**Note that a reasoning like “others might not have been this dedicated, but we were; ergo, the premise holds for us!” fails on the fact that a divorce is taking (or has taken) place: The divorce, it self, makes a lack of dedication the prima-facie assumption, even in light of assurances otherwise. (Even assuming that the general societal situation is not sufficient.) Also note that it is not enough to be dedicated or whatnot at the beginning of a marriage—the dedication must have been present through-out, until something utterly intolerable happened; moreover, the party requesting support would have to prove a considerable and realistic expectation of this dedication from the other party, which would be next to impossible in light of current divorce rates. Factoring in the risk of an exaggerated portrayal of dedication for personal gain, and the manifestly low typical dedication, an assumption that the premise holds would, if at all conceivable, have to be reserved for truly exceptional cases. (However, in the suggested system it would never be needed, if the parties have done their due diligence.)

This implies that it is equally unconscionable to force* the one former spouse to take care of the other and to abuse various forms of spousal support to remove costs from the government. Even now, hardships for the one former spouse should be covered by the government** (and/or any existing private insurances)—not by the other former spouse. They have paid taxes, they have paid unemployment insurance, they have paid whatnot***—they have the same right to protection and support from the government as anyone else! This is clearly reflected in the above system. The common current approach is a mere legal dictate for the self-serving benefit of the government. (Notwithstanding that this might have been different in the past.)

*To be contrasted with voluntary contributions, including those regulated in the contract. (Here, again, it is the responsibility of the parties to find a mutually agreeable solution in advance.)

**Assuming that we live in a society where the government handles such issues in other cases, as is in most or all of the Western world. Note that I do not necessarily consider this general approach a good idea: The point is that a government that does normally provide such support must not discriminate arbitrarily or for its own gain, and it must not collect money from someone to cover certain services and whatnots and then refuse to perform when performance would normally be expected.

***The situation differs from country to country. In the complex German system, e.g., unmentioned posts typically include health insurance, “care” insurance (“Pflegeversicherung”), pension fees, Solidaritätszuschlag (a backdoor increase of the income tax), and Church tax—and that is just on the salary. There is also VAT, property taxes, inheritance taxes, vehicle taxes, energy taxes, … (To which might further be added taxes nominally paid by e.g. businesses that ultimately fall back onto the citizens through higher prices or other disadvantages.)

As an aside, this is another point* where child-support is different—a proposed natural obligation to take care of one’s children does not stumble on this premise. More: While spouses marry voluntarily, children are put into this world by their parents, making the obligation that much stronger.

*In addition to children not being parties to the contract.

Excursion on union as a legal person:
It might be a good idea to make the union a legal person in its own right, to make interactions with third parties easier, to handle tax issues, and similar. The idea is interesting, but I have not thought deeply enough on the issue to recommend it outright. It could e.g. turn out to be far too bureaucratic.

Excursion on potential abuse:
I briefly contemplated whether this system could fail through an increased risk of abuse, e.g. in that one party makes unreasonable promises while being infatuated or that the other pushes such through with the threat of not consenting to the union.

However, I do not see the risk as that large. For one thing, contract templates would be unlikely to contain the ability to make too poor choices; while a from-scratch contract reasonably should involve at least one lawyer (better: one lawyer per party). For another, a major point of the scheme is that people really take the time to think things through*, and the appearance of unreasonable demands before a union is better than during a marriage.

*Which, obviously, will also often involve discussions with good friends and parents, who are likely to see things more clearly.

Should people still manage to be unreasonable, well, it is their lives, and if we were to try to nanny them in this area, we would have to nanny them elsewhere too, seeing that the ability to enter idiotic contracts is already present—including relating to marriages.

In addition, most legal systems have some degree of protection against unconscionable agreements or similar that might apply in a given case.*

*However, e.g. duress or perceived extortion would hardly ever apply. For instance, “if you do no agree to this, I will not marry you” is, alone, not worthy of being duress—indeed, considering it such would make the contract too unreliable and positively invite deliberate abuse. Even a factor like the prospective bride being pregnant cannot normally be seen as a cause for duress in today’s Western world and its usually great tolerance of extra-marital children. (In contrast, a literal knife to the throat qualifies.) To boot, we have to consider issues of evidence, and most attempts to show duress would end up in a word-against-word situation.

Another possible issue could be a circumvention of laws against prostitution through a strongly time-limited union (as is apparently done today in some Islamic areas). Even discounting the fact that I am strongly opposed to such laws, I doubt that this means of circumvention would be practical (note e.g. the need for a notary and the potentially embarrassing semi-public registration per an above item). To boot, measures that give the impression of having one effect, while obviously intending another, are often measured legally by the intended effect; and a contract that e.g. stipulates a union of thirty minutes, with sexual consummation, and a one-time “divorce settlement” in cash, will have a fairly obvious interpretation. If worst comes to worst, a law deeming the union frivolous and void when of too short a duration might be conceivable, as might one that a union only goes into effect with some time delay.

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Written by michaeleriksson

July 25, 2018 at 2:44 pm

2 Responses

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  1. […] (Much of the above could be deduced from two more abstract items, (a) freedom of self-determination, with variations, and (b) the application of some basic contract-law principles. I only very narrowly decided against a corresponding re-working. Also see an older text where I am more explicit about applying contract law to marriages.) […]

  2. […] previous texts of mine ([1], [2]) are highly open to marriages based on reason, and would allow a fairly short period of prior […]


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