Marriage Contracts: Give People More Legal Options


[from 2004] Marriage throughout history has been a contract between two people to bind themselves, their families, and their property into a contractual arrangement to provide for children, a home, and often support for aged relatives. It’s only in the last few hundred years that longer lives and greater security made marriage for love a common ideal, and in many places it’s still a rarity.

Like many other social arrangements codified in law, long before it occurred to legislatures to address the subject, and before churches consecrated the marriage by ceremony, people were getting married. Ceremonies were more or less elaborate, but the magistrates of every era recognized a body of common law which allowed enforcement of the basic contract.

In the modern era, legislators have codified and regulated marriage, and other family law, to promote majority social goals and express popular prejudice. As with most government efforts, one size is expected to fit all, and the laws are created with a stereotyped model family in mind: once a breadwinner husband, homemaking wife, and 3.5 kids, and now working husband and wife and 2.1 kids. Subsidies to marriage for childrearing are embedded throughout the tax code, Social Security benefits, and social services.

Now in a society where people generally live 40 years longer than they did when marriage evolved, there is a need for a form of coupled association that recognizes that childrearing couples — defined as two people raising children below the age of 21 — are now a minority of couples. While the legal form of marriage for childrearing purposes may deal reasonably well with the contractual arrangements most people intend for that purpose, it is not particularly well tailored for most gay couples, or for that matter many straight couples who don’t intend to have children and don’t want to pledge a lifelong commitment, yet see a need for some mutual obligation. Thus the recognition of common-law marriage rights (where the rights and duties of formal marriage are extended to those who have gradually become married by their actions rather than by ceremony), and the movement to provide domestic partnership for gay couples (and in some states, e.g. France, to less-committed straight couples.)

Ideally every couple would draft a contract of what they want their relationship to entail. Since this process would (under the current legal system) involve custom drafting by attorneys and probably cost $10K or more and weeks of work by all involved, only the wealthy can afford it, and even this cannot award the benefits conferred by legislation to married couples, especially in the Social Security benefits and dual parental status. In situations like this (wide universe of possible contracts, prohibitive legal costs, and varying needs), the solution is often codification of several alternative arrangements — the legislative and executive branches research the problems, come up with several carefully-drafted legal arrangements, codify them in law, and offer a choice between them for those who wish to enter into a contract which will be understood more easily by all parties even if not perfectly suited to each user. The contracts are designed to cover almost all needs, with side arrangements (options) for custom tailoring. We see this in things like insurance, where car insurance is offered in various types and coverages, with optional deductibles, or in real estate, where standard contracts are ruled on often enough to have a body of law covering them.

What would really be ideal for marriage is a similar spectrum of different arrangements, prefab versions of the detailed legal arrangements that wealthier couples often enter into today under prenuptial agreements, which allow easy choice between alternatives which all understand, and which can be enforced via less complex and expensive dispute resolution systems than family courts.

With all that in mind, Gavin Newsom, the new Mayor of San Francisco, directed the City to begin issuing marriage licenses to gay couples. I took the pictures below outside City Hall, where thousands of people came during Valentine’s Day weekend of 2004 to get their marriage licenses. The atmosphere was festive, passing motorists honked their horns in support, and some beautiful couples did their bit to overturn the unfair restriction of marriage to opposite-sex couples.




And some interesting bystanders:




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