Let me start in a way that i

2013-06-07

Let me start in a way that i hope you find controversial.

I am against gay marriage. The state should not recognise the marriages of gay couples.

But fear not, I’m a nice liberal Guardian-reading libdem-labour-green swing voter. I am not about to join the UKIP. To expand upon my position:

I am against marriage. The state should not recognise the marriages of couples.

Marriage is a contract between 2 people (and god, if you choose to believe). I don’t see why the state needs to get involved.

There are various rights and responsibilities that come with marriage, but in all cases i think it would be better if these were separated:

- married fathers have more rights (for example, direction of medical care) over their children than unmarried ones. That’s just silly.

- married couples have various tax advantages (rarely, disadvantages) depending of the whims of the current government. It really depends what the policy is here. Is it to encourage people to form lasting bonds, or is it to recognise that people who stay at home to manage a household deserve a tax break to recognise their economic contributions and compensate for their lack of earnings? Two sisters share a home where one has a full-time job and the other looks after the house and does a few hours teaching a week (maybe they co-parent a child). Should they not be able to pool their tax-free allowance? Peoples lives are entangled in all sorts of ways that the “married couple” paradigm does not recognise.

- married couples have access to the divorce courts. Unmarried couples would benefit from the guidance and impartiality of the divorce courts too. Separation is stressful, messy, confusing thing to go through, and of course the divorce court does not wave a magic wand and make it all unicorns and ponies, but i think it is helpful, and it would be helpful to all couples.

- the estate is presumed to pass to the surviving widow when one of a married couple dies.

It’s not that i don’t think the state should be doing these things, in most cases i think they should. It’s that i don’t think these things should be bundled up in Marriage. Sharing your tax-free allowance should be a matter of filing a form with the tax office. Letting your estate pass to another on your death should again, just be a matter of filing a form.

Asserting paternal rights over a child is a lot more messy. Should it matter if you’re not the genetic father of a child, if you’re the one providing the home and investing in the child’s development? Should the mother be allowed to prevent access to a supposed father? I have no idea, but whether a couple is married or not should not matter.

Public recognition. Of course people should be allowed to marry and be married. Public recognition is one of the most important aspects of marriage. But this recognition comes from your peers, not from the state. Couples have been getting married for thousands of years, long before governments came along to record the marriages.

Marriage as a union for life between a man and a woman is a christian thing. Marriage as actually practiced over the last 5000 years or so is much more diverse. We should embrace that diversity (once again). Capturing this in leglisation would be a complicated nightmare.

The simplest thing the state can do is not get involved.

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11 Responses to “Let me start in a way that i”

  1. Nick Barnes Says:

    Ah, but the state already is involved. The question is: how to unpick that involvement while minimising unforseen consequences.
    For instance, parental responsibility (*not* “paternal rights”, which is wrong in two distinct ways). Unmarried fathers, step-fathers, etc, can have parental responsibility, either by being listed on the birth certificate, or by agreement with the mother, or by a court order. (More than two people can have parental responsibility for a child). I think that the only change you can reasonably make would be to stop automatically giving parental responsibility to husbands and civil partners of mothers. That is, fewer people will have parental responsibility. The predictable consequence of this is that some children will end up without a responsible parent. That is: without anyone having the duty to house, maintain, and protect them. I don’t think this is a price worth paying.
    (note: it’s a bit more complex than that, as parents have some duties even if they don’t have parental responsibility).
    Inheritance is worse: the consequence of the only plausible change there is the effective abolition of inheritance tax.

    Get Francis to pitch in here; he knows all this stuff really well.

    • drj11 Says:

      well, either the abolition of inheritance tax, or the abolition of inheritance. no points for guessing which one i’d prefer.

      • Nick Barnes Says:

        Sure, sure. Good luck with that. You *might* be able to get the state out of the marriage business, given a couple of decades and a following wind. Abolishing inheritance will never happen.


      • Abolishing the concept of inheritance would be very, very difficult. It would require a complete reconstruction of our notion of property. The problem is that we are all happy with alienable property.

        If you won’t let my children inherit, I can will to them. So you have to prevent post mortem gifts. But what is to stop me making an inter vivos transfer (perhaps using a scheme like a trust to make it all work the way I want)?

        Ultimately you would have to abolish alienability of property. That is a very interesting approach but hugely revolutionary and requires considerable thought on your behalf.

        Of course we toyed with non-alienability of land prior to Quia Emptores (1290). At that time you would have needed your feudal Lord to agree to the transfer and, at an earlier time, to any inheritance. But land is much easier to organise this way than other kinds of property and other kinds of property are now very important.

        Also: where do you think we got the idea for trusts _from_ in the first place?

        I understand that some principle of non-heritability was used by Aztec nobles, but I do not know the details and of course it is entirely possible to reduce the affection for children (cf Sparta) which might have an effect.

        Uphill struggle anyway.

        Inheritance tax is, of course, not a tax on inheritance. Despite the name, it is a capital transfer tax, it is just that the rollover relief is automatic until death.

  2. Nick Barnes Says:

    Oh, also: marriage is not a contract (in the sense: it is not governed by contract law). It is both more and less than a contract at the same time (binds things that contracts cannot bind; does not have recourse that contracts provide). Something like that. Ask Francis.


  3. Not being a family lawyer I don’t have detailed knowledge of how the law of parental responsibility works, but Nick is broadly right in saying this isn’t straightforward.

    Broadly I agree with you. It would be great if we could do all these things in some way that unpicked the state involvement with marriage. You couldn’t do some of them reliably with a contract – as Nick says – but we could fashion a law that did allow certain kinds of agreement to be made between individuals, eg “cohabitation agreements” that organised various bits of one’s affairs.

    The reason I support same-sex marriage is that we have marriage and we aren’t likely to be getting rid of it as part of the law and so we ought to make it available to people regardless of sexuality as a matter of basic human rights. Better that we hadn’t painted ourselves into this corner, but here is where we are. Your suggested change while possibly a better ideal is further away.

    There is a very real problem – however we resolve this issue – which is that people don’t make sensible arrangements for cohabitation or life sharing. Marriage is kind of designed (not too well but it’s better than the alternative) to regulate cohabitation. If we lived in a society where all cohabitees got married as a matter of social pressure then numerous very real and practical legal problems wouldn’t arise.

    But obviously we don’t live there. So we end up with people who share lives and families together but do no paperwork to regulate that arrangement. When things fall apart or people die, we (that is lawyers) end up unpicking the arrangement and it is neither easy nor pretty.

    I have no idea what to do about that. Some newer better way ought to present itself.

    NB: the estate does not go to the widow by default. A lot of it does, but by no means all of it.

  4. Nick Barnes Says:

    When Bad Things happen (e.g. illness, abuse, death, separation, etc), people get shafted. This is especially true for more vulnerable people (e.g. children, the poor, carers, often women). It would be nice if they were protected by the law. They don’t arrange protection for themselves, because they don’t think the Bad Things are going to happen to them (he loves her, you see), or because they can’t (because they are children, or controlled by an abusive partner, or because legal protection is impossible). So wouldn’t it be grand if there were some sort of boiler-plate default protection that can be applied? Lo: marriage.

  5. Nick Barnes Says:

    (of course that isn’t the history of marriage, but it is an argument for some sort of marriage-like arrangement – a cohabitation agreement – that I think holds a lot of water).

  6. rptb1 Says:

    I used to think that the state shouldn’t be involved in marriage, but then I realised I was assuming that everyone was capable of negotiating a decent contract. This isn’t true. There are plenty of people who “get married” for all sorts of reasons that mean that they don’t understand what they’re getting in to, and the state needs to protect them. It also needs to protect vulnerable cohabitees better. Perhaps the way forward is to separate that protection from “marriage”, but it shouldn’t be absent.

    There was a recent episode of Clive Anderson’s “Unreliable Evidence” on iPlayer about this, but it’s expired. A lot of it was discussing vulnerable people who believe that there’s some sort of “common law marriage” in England, which there absolutely is not.

    • Nick Barnes Says:

      Right; it was a good program (I was startled by the repeated assertions of a widespread belief in common-law marriage, maybe because I learned so long ago that it’s a nonsense). The word from Scotland, where they fairly recently changed the law, is that it *does* seem possible to protect unmarried cohabitees. Unfortunately this does mean the state getting involved in relationships to which they are not invited (even distinctly uninvited, in some cases), which inevitably reduces freedom.

  7. mjb67 Says:

    Heinlein’s “For Us, The Living” discusses this. He also proposes a system with no marriage and no inheritance.


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