Marriage and Values in Public Policy

Conflicts in the UK, the US and Australia

Elizabeth van Acker

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781317604891
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

Marriage is a site of political conflict. It is a controversial issue in the UK, Australia and the US where there is a clash of values between neoliberal governments and diverse groups either strongly opposing or supporting marriage. In the meantime, fewer couples are marrying, while other family forms are more widely accepted. This book explores this disconnect by examining policy issues such as class divides, ethnicity, religion, same-sex marriage, gender relations and romantic expectations.

A top down approach explores different government policy responses to marriage. In all three countries, there are differences and similarities in how governments react to the changes in family formations, but values or 'conceptions of the desirable' play a significant role. Enhancing stability and commitment as well as personal responsibility are important for policymakers who aim to keep 'the family' intact and thereby lower the burden on the public purse. It is difficult for political actors to respond to conflicting and changing values surrounding the diversity in relationships or to translate them into policies. There is a strong case to be made for increased policy attention to adult relationships - and a much weaker case for marriage. Rich evidence is drawn from interviews with key stakeholders as well as politicians' speeches, government departmental reports, stakeholders' documents and responses to government policies, and media articles.

1 Transforming the Legal State of Marriage

For centuries, marriage has endured, evolved and adapted in line with changing values, the law and politics. Marriage is not a historically fixed institution; its definition and purpose have altered dramatically as the legality of marriage has been historically regulated by the state in different ways. This chapter reflects on marriage from a legal perspective because it is more than a social, moral, religious or financial institution. It examines cross-national variations in the changes to the institution of marriage. Accordingly, marriage is regulated in a special and privileged manner, offering legal protection that is not available to other cohorts. Governments accept these laws, but the dominance of neoliberal conceptions of the role of the state focus on individual responsibility and believe that it is up to everyone to improve their circumstances. Legislators must ensure that diverse values and interests do not undermine the autonomy of couples to choose their own lifestyles. This poses difficulties for governments because marriage laws have become more complex with varying legal effects across the three countries and jurisdictions, resulting in different policy outcomes.

Generally speaking, marriage has added value by delivering substantial rights and automatic legal benefits, while reforms to cohabitation and same-sex marriage have also occurred, albeit more slowly. This chapter describes different laws in the three countries which have consequences for marriage-related policies and discusses how they relate to the book’s framework of the ‘conception of the desirable’. It focuses in particular on the legal state of marriage, cohabitation and divorce by examining relevant legislation and changes that encourage different policy responses and how they are linked to relationship values that were laid out in the introduction—commitment, stability and responsibility. The chapter argues that the legality of marriage has been historically regulated and predicated upon state protections, but it has been modified rather than transformed. Laws play a critical role in symbolising and codifying values, sometimes challenging traditional family values when mirroring changes in relationship values. Equality and freedom in relationships have become more important than morality: it is now more acceptable to divorce, to live together or to have open marriages, or for same-sex couples to marry. It is much easier to dissolve the legal marital bonds with much less social stigma attached to divorce. Many women (but by no means all) have more power within their marriage due to legal reforms and more protection. Yet the laws still create different challenges for governments because protecting people who are vulnerable when family relationships fail is at the core of the values underlying the system of family law. Legal rules favour respecting individual autonomy and protecting public finances by privatising many obligations, but when values conflict, dominant values still correspond to neoliberal values. Thus the law can only go so far as a tool for social change.

Laws, political systems and policies influence and ascribe significant enticements and impediments to the forms and practices of marriage. Moreover, within a neoliberal discourse, the source of personal problems is located within people themselves (Rose 1999). Some assumptions identified in law help to define the institution of marriage, including what constitutes a ‘proper’ family, the roles of men and women and husbands and wives. Some feminists have argued that marriage is essentially based on a relationship where men control women and thus marriage laws are inherently patriarchal (Pateman 1998). Although marriage was undoubtedly male dominated, legal reforms have occurred which have improved the status of women within marriage. The intent of pro-marriage laws is to foster stronger, more enduring marriages and offer protection to partners and their children. This intent reinforces the traditional relationship values of monogamy, commitment, stability and responsibility. But some changes in the law have shifted the focus to values of equality and personal freedom. Marriage may not seem important or desirable to some; others may see very little difference between marriage and cohabitation; and there are fewer objections to unmarried childbearing. For many gays and lesbians, the recently won marriage status was sought as a symbolic declaration of equality, not necessarily because it is a suitable state in itself. Nevertheless, it was anticipated that perceived practical benefits (which often turn out to be illusory) would follow from the married status. Consequently, many legal reforms have unintended effects, forcing policy makers to consider readjusting policies for parents and unwedded relationships. For example, when cohabitants or same-sex couples deliberately choose not to marry, safety net provisions offering them or their children some kind of legal status or protection of property are not automatically accessible.

Legal and political systems impact on outcomes relating to marriage. In the US, constitutional power restrains the power of the federal government to regulate marriage, although cases can be brought forward to the federal courts. Marriage laws are the province of the states, not the federal government, although there are federal laws surrounding marriage. Therefore, until recently same-sex couples (depending on the particular state) and unmarried heterosexual couples fall outside some of the legal frameworks of marriage, as do single people. In Australia, the federal system works differently to the US, because marriage is a federal issue that is included in a subset of the Commonwealth Constitution. Moreover, Australia’s Marriage Act now states explicitly that marriage is between a man and a woman, reinforcing religious notions of faith and immutability. Nevertheless, all cohabitating and same-sex couples have legal protections to varying degrees in Australian states and territories. In the UK’s unitary system, there is very little protection for cohabiting couples—English law does not acknowledge the concept of ‘common law marriage’—but because same-sex marriage is now legal, same-sex married couples have the same rights as heterosexual married couples.

Marriage’s legal terms can be and have been redefined. The law is influenced by values and social trends that play an important role in shaping social constructs and behaviour. Marriage laws play an important role in forming ‘the people’ and shaping the body politic (Cott 2000: 5). Political authorities in liberal democracies expected monogamy based on a Christian model to prevail, not only because of widespread Christian faith and social practice, but also because of government policy choices and laws (Cott 2000: 25–26). No government can ignore marriage because of its direct impact on reproduction and the composition of the population. Those oriented towards conservative values argue that married people should be granted significant legal, economic and social benefits and that unmarried people should not be treated the same (Nock 2002). Polygamy is often derided in society, even by marriage equality advocates who fear guilt by association when confronted with the ‘slippery-slope’ arguments opposing same-sex marriage. This derision may force polygamists to hide their families or to join outlaw compounds which may contribute to divorce and absent fathers (Stacey 2012: 213–214). People may or may not decide to marry according to legal incentives, but as Barlow et al. (2005) explain, an idealised notion of families based on committed marriage for life is very different from the reality of diverse relationships. It is more difficult to legislate for this diversity and easier to ignore it. Any resistance to, or ambivalence about marriage is not to deny that a marriage licence can ease the way for couples in many legal situations. However, this was not always the case when we consider the position of women in marriage.

Marriage laws have historically oppressed women. In the eighteenth century, English common law suspended the wife’s legal existence via the doctrine of coverture and deprived her of rights. William Blackstone, the eighteenth-century legal authority, supported this doctrine; it explained that Genesis declared husband and wife to be ‘one flesh’ in the eyes of God, so that they were ‘one person’ for legal purposes. The husband represented that person (Shanley 2006: 190). This meant that a married woman could not sue or be sued, she could not make a valid will without her husband’s consent and he was responsible for her actions and for her welfare because he was the breadwinner, the protector and head of the family. In short, ‘head and master laws’ declared that wives were servants with no personality, no property and no legally recognised rights (Brake 2012: 113). This doctrine was also adopted by the US. Law enforcers regarded domestic violence as a private matter. Coverture was dismantled during the nineteenth century, but the gender roles that characterised marriage continued. Moreover, issues such as spousal rape were not regarded as criminal acts and remained unchallenged, although there were calls for reforms. Divorce was granted to a husband only for his wife’s adultery, but not for his, while physical cruelty and domestic abuse were not necessarily grounds for ending the marriage. It was not until the 1990s that marital rape was totally criminalised in all three countries. Domestic violence and abuse, however, continue to be a major legal problem.

Another gender effect was the ambivalent policy response of legal policy makers, meaning that when values clashed, rules designed to protect the vulnerable were not prioritised. For many couples, cohabitation is a precursor to marriage or a viable alternative. Other cohabitees, however, have less stable relationships than married couples, are more likely to experience domestic violence, be economically dependent, come from disadvantaged racial or ethnic minorities and have children (Bowman 2010: 169; O’Donnell et al. 2002). This instability justifies improving property rights as well as support upon dissolution of relationships (if children are involved or if the relationship has existed for a specific period). The lack of legal protection is gendered in its effects because women are more likely to experience domestic violence, have less economic power and be the primary carer of children (Bowman 2010: 169). They tend not to form any strong lobby groups and feminism focuses more on the plight of married, divorced or single women in attempting to end marital status discrimination (Pleck 2012: 236). As it became more commonplace, cohabitation appeared to threaten the institution of marriage and offered women ‘the fool’s gold of liberation when what they needed most was commitment’ (Pleck 2012: 141).

Marriage and Cohabitation in Law

Cohabitation is now far more socially acceptable than in the past. Trends in increased cohabitation are evident throughout the western world, irrespective of the family law regime in place (Bowman 2010). Cohabiting couples in Australia enjoy many legal protections via state legislation, while in the US, civil unions and domestic partnerships are also regulated by the states, but without formal federal recognition of such status. Non-marital relationship contracts are not necessarily recognised from one jurisdiction to another and neither are de facto relationships. In the UK, cohabitation does not extend the same legal status as it does to marriage. The lack of reforms could be explained by the fact that politicians are unwilling to repeal these laws and risk alienating ‘family values’ voters or because they regard cohabitation as a way of maintaining the perceived superiority of marriage over other relationships (Lehmiller 2013).

The Legal Regulation of Relationships in the UK

Marriage as a legal relationship stems from British practices. It was a sacrament administered by the Anglican (and before it the Catholic) Church for many years and was subject to their informal rules. It was not until 1753 that the state began its legal involvement with an Act for the Better Preventing of Clandestine Marriages (Marriage Act 1753). It was necessary for the church to perform the ceremony to be legally recognised. Nonetheless, a myth developed that cohabiting couples acquire ‘marriage-like’ rights and responsibilities and so have similar legal protection to those who are married. As a legal category, the Act included prescribed formalities and declared clearly that a new marriage had been formed with a signed marriage licence and that every parish had to keep a record of all registered marriages. However, only a small proportion of marriages were preceded by licence, the majority were preceded by banns. Throughout this time, Christian marriage was indissoluble and a covenant with the church. It was an unbreakable bond, expected to be for life and based on monogamy. The law accepted that the status of marriage is regulated in privileged ways, but the status of cohabitation has remained less clear. Those who support traditional marriage would argue that it is the best legal protection for heterosexual couples and that marriage would lose its exclusive status if its benefits and securities were obtainable for everyone. When couples married, they gave their consent to enter a relationship with terms set by the state, which created a legal division between marriage and cohabitation. The law continued to buttress marriage in different ways over the centuries. This included the shame punishments experienced by the few couples who cohabited in the seventeenth and eighteenth centuries (Probert 2015: 158). Marriage was ordained ‘for a remedy against sin, and to avoid fornication’ (cited in Probert 2012: 26). Churchwardens identified those accused of having sex outside marriage (often after receiving information from ‘respectable parishioners’). Punishments for the moral offence of having illicit sex at various times included imprisonment, the public confession of one’s sins, appearing before either a church court or a common law court or paying a fine. However, the supervisory role of church courts deteriorated, so that by the 1690s the Society for the Reformation of Manners was more concerned with open practices such as street soliciting, indecent exposure and public intercourse (Probert 2012: 33). By the nineteenth century, punishment had shifted to subtle deterrence of certain behaviours and removing many of the prohibitions on who could marry whom and supporting remarriage. The Marriage Act 1836 and the Registration Act 1836 permitted couples to marry outside the Church of England and in a civil registry, whilst maintaining legal regulations and solemnisation of marriage.

An examination of cohabitation illustrates that at best, case law and statutes have addressed cohabitation on an ad hoc basis. Cohabitation offers no general legal status to couples, unlike marriage and civil partnerships from which many legal rights emerge (Fairbairn 2016: 3). In defining and describing cohabitation, Probert (2012) argues that it is concerned with that sub-set of sexual relationships outside marriage involving the parties living under the same roof. She does not include couples who ‘live apart together’ because this is a distinct and significant trend which would have played out differently in earlier centuries than it does today. While cohabitants may have felt that their relationship was akin to marriage in a moral or emotional sense, there is nothing to suggest that they would have believed that it carried legal rights akin to those of married couples. There was nothing in the descriptions of cohabitation or in its legal treatment to mislead couples into this belief (Probert 2012: 13).

While there were some minor attempts to regulate ‘marriage-like’ cohabitants in the 1970s and 1980s (which led to cohabiting couples assuming they had the same protections as a spouse), this was reversed in the 1990s with the Conservative Government’s push for family values. In its first term in 1997, New Labour aimed to strengthen marriage and promote social cohesion which justified the legal status quo while other options of partnership and parenting were ignored, as were reforms to cohabitation. Nevertheless, over its period of rule, legal recognition was conferred on a range of family forms as the focus shifted away from marriages (van Acker 2008). Thus the law perceived cohabiters during this time with the neutral and non-judgemental term of ‘partner’. This judicial terminology was more respectful than expressions such as ‘common law spouse’, ‘mistress’ or ‘living in sin’ (Probert 2012: 255–256).

The legal status of cohabitation raises important questions about values, particularly those concerning stability and commitment: cohabitation is often perceived as the inferior form of partnership, or as a dysfunctional form of family (Barlow et al. 2005). As the authors state, ‘the fact that marriage provides a convenient measure of high level commitment to the relationship is probably one reason why marriage is privileged in family law’ (Barlow et al. 2005: 101). In the case of marriage, the judiciary has complete discretion under marital law to take all the circumstances and history of the relationship into account. However, cohabiting couples have no such clear or automatic rights, regardless of the length of their relationship or whether or how many children they have. In some situations, the law regards heterosexual cohabitants as if they were married, in others it regards them as a family form inferior to marriage and in yet others, it ignores the cohabitation relationship altogether, treating partners as strangers (Barlow et al. 2005: 6). Upon separation or death the surviving partner does not have any automatic redress. The Law Commission for England and Wales (2002, 2007) has examined ways of reforming ownership rights so that cohabiting couples can access property, but failed to recommend a useful legal approach. Certainly, it seems that very little has been done to improve the rights of cohabiting couples in legal terms and the introduction of some rights has only served to heighten the surrounding confusion (Barlow et al. 2005). For example, low-income earners can obtain financial support for their families whether married or not. However if the cohabiting couple separates, a partner does not have to pay maintenance (although they do have to pay child support for their children). If there is no legal agreement in place, there is no entitlement to the other’s savings and possessions. Moreover, fathers do not have parental responsibility if they have not jointly registered themselves with the mother as the child’s parent. If one of the partners dies without leaving a will, however, the cohabitant may have the right to a share of that partner’s estate under the Inheritance (Provision for Families and Dependants) Act 1975.

The main findings in a report for the...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of Tables
• Preface and Acknowledgements
• List of Abbreviations
• Introduction: Neoliberalism, Values and Marriage Policies
• 1 Transforming the Legal State of Marriage
• 2 The Clash of Institutional versus Individual Values
• 3 Changing Gender Relations and Values in Marriage
• 4 The Neglect of the Marriage Divide and Disadvantaged Cohorts
• 5 Government Strategies to Strengthen Marriage
• 6 The Contradictory Politics of Same-Sex Marriage
• Conclusions: Can All Couples ‘Live Happily Ever After’ in Neoliberal Societies?
• Appendix: Questions for the Interviews
• Index