|Has marriage become an anachronism? It would seem so. It is
being replaced by cohabitation. The latest census shows that cohabitation
between the sexes almost doubled in the decade surveyed, while traditional
marriage increased by a paltry 7 percent. On top of this, marriagelike
unions between persons of the same sex have become more common and, except
in some religious quarters, increasingly accepted. It has been estimated
that there are now over five million unmarried couples living together.
Not long ago, cohabitation between the sexes was considered totally unacceptable and immoral—adultery pure and simple. It is still a crime in some jurisdictions, and, while such statutes are not enforced, they are also not repealed, due to the influence of churches. Cohabiting couples are no longer banished from the professions, such as teaching, and are even accepted without censure in most churches.
Cohabiting couples typically take upon themselves all the responsibilities and advantages of marriage, such as sexual fidelity, sharing of property, raising children, and so on. All that is missing is formal legality. Cohabitation has become so common that there have arisen strong advocates and a very active nonprofit organization to promote it, the Alternatives to Marriage Project (http://www.unmarried.org). Indeed, there are liberal clergy willing to preside over a wedding-in a church, with guests, witnesses, flowers, and a reception. Such "services of commitment" are fairly common for same-sex couples, but a cohabiting man and woman can do the same. No marriage license needs to be obtained, and no certificate of marriage is issued. The minister omits from the service the words, "By the power vested in me by the state"; but not the words, "I now pronounce you man and wife." The wife can take the husband's surname if she wishes, and they can bestow that surname on any children born of the marriage. That will be the name on the birth certificates, and no question of legitimacy will arise. What the couple cannot do is use their relationship to defraud. But then, financial fraud is forbidden to everyone.
Such couples do not, then, need the permission of government to become a de facto married couple nor, what is equally important, do they need such permission, in the form of a court proceeding, to dissolve the marriage. If the marriage fails they can simply go their separate ways. From a libertarian viewpoint this is of enormous importance, for the question can surely be asked what business government can possibly have in choices so private and personal as this?
It is in fact government itself that is partly responsible for the rise of de facto marriages, these being the unanticipated result of legal restrictions on the inheritance of pensions. A widow, for example, is entitled to the benefits from her deceased husband's Social Security, and, of course, vice versa. But what if she remarries? Should she still be entitled to those lifelong benefits? It was thought not. So a compromise was reached. If she remarries before age sixty (fifty-five in the case of civil service pensions), then she forfeits those benefits forever. But if the widow remarries even one day after that age, then they will continue for life. This rule is obviously arbitrary. It was apparently assumed that no one would want to marry someone that old. The effect, however, was to place many widows under that age in a bind. Should they give up their pension rights or abandon hope of remarriage? So they compromised. They entered into de facto marriages, and over time they became almost totally accepted. The sense of guilt that some such couples felt soon passed, and the customary legal documentation of marriage was seen to be for most practical purposes meaningless.
From this, of course, it was but a short step to the acceptance of de facto marriage at any age. College deans no longer take much notice of male and female students living together in dormitories. Many men and women just out of college and starting professional training enter into such relationships without stirring the least disapproval, even from their parents.
In fact, cohabitation is fast becoming the normal route to formal marriage. Couples try living together, often for a considerable time, before tying the knot. This is in some ways very strange, for one can wonder why, if the de facto marriage has proved fulfilling and durable, they should then bother with legality and an often expensive and elaborate wedding.
Is There Any Point to Legalisms?
There may, to be sure, appear to be reasons for making everything legal. Laws can create benefits that are sometimes considerable, but as we shall see, these can be secured just as well in a de facto marriage by some simple property arrangements.
The blessings traditionally associated with marriage are such things as ongoing love and emotional support, the defeat of loneliness, security, home life, sexual exclusivity, the opportunity to raise children together, share property, and so on. These can flourish no less in a de facto marriage. Couples who represent themselves to the world as married are accepted as such. They are never asked to prove it. Employers raise no doubts, and even insurance companies and government agencies usually take their word for it.
The disadvantages of such an arrangement are that its partners cannot file a joint income-tax return, nor can they get family coverage for health insurance without risking a charge of criminal fraud. There is, however, usually little if any advantage in filing joint tax returns, and either partner can include the children in his or her health insurance.
What, then, about security? It is sometimes supposed that, without marriage that is binding in law, one or the other partner, or perhaps both, has only a fragile security. A "marriage" that rests only on mutual agreement is no real marriage and can be casually dissolved. The female partner is especially likely to feel such insecurity and may badger her partner to marry her, even after years of cohabitation. Men usually feel less threatened.
There is some truth in this criticism, which we shall examine shortly, but first we must ask: Just how strong is the bond of legal marriage?
Not very strong at all. The legality of the arrangement binds nothing. Half of such legally "binding" marriages end in divorce. How tight can the knot have been if that is the result? A marriage is not made secure by the filing of documents, and certainly not by vows, however solemnly uttered. Its strength can rest on nothing but the unshakable love of its partners, which can flourish and grow in a de facto marriage no less than in a traditional one. Indeed, it may be even stronger, since no one is likely to feel trapped, and thus resentful, in a marriage that is kept alive and vibrant by the devotion and consideration of both partners.
A traditional marriage is typically launched in a church, with a sometimes elaborate ceremony presided over by a clergyman. This gives an aura of sanctity and seriousness to the step being taken, but it adds nothing to the durability of the marriage. The tireless promotion of traditional marriage by conservative religionists is largely hollow. Religious people are just as susceptible to friction, frustration, and deep unhappiness in marriage as anyone else. In fact, according to one study, the rate of divorce in the so-called Bible Belt considerably exceeds the national average (New York Times, May 21, 2001). So much for the claim that those who pray together, stay together.
There can, however, be a real threat to economic security in a de facto marriage in case the partners neglect to secure themselves with some simple property arrangements. For example, a judge is likely to view the female partner in such a relationship as only a willing mistress without any claim to her partner's property. Moreover, courts are increasingly taking the position that marriage is a true partnership, like any other, in which the partners are to be treated as equals whatever might be their different roles. This means that, in case the marriage is dissolved, property will be divided equitably. Exceptions are made only for such things as pensions in which one partner has invested prior to the marriage, tangible and intangible property that was inherited, and so on—property that was gained entirely outside the marriage. Once married, however, husband and wife are considered to have contributed equally to whatever is accumulated, even if the income that produced it was in fact earned exclusively by only one. If, for example, a wife's role was to manage the household, and the husband's to provide the income, then it is assumed that the resulting property belongs equally to both.
This view of marriage was driven home by a New York appellate court in a case in which the wife was the wage earner while her husband was in medical school. Soon after he finished his training and entered into a lucrative practice he sued for divorce. The court took the view that his medical degree was, in effect, a license to earn money, and that the wife had toiled just as hard to get it as he had, by her supporting him through those years. She was accordingly awarded a large portion of his entire future income.
In another case a wealthy business executive filed for divorce, offering his wife $1 million as a final settlement. She attracted a great deal of media attention by demanding $10 million. She did not get all that, but the court did award her most of it, the view being that she had earned it, just by being his wife.
Finally, in a third case, a man left his wife without formally divorcing her, and entered into a lasting de facto marriage with someone else. Years later, when he died, a court awarded the first wife one-third of his estate and gave nothing to the de facto wife, noting that the second marriage was without legal validity.
This being the trend, we can expect that partners, and especially men, are increasingly likely to prefer de facto marriages rather than confront the possibility of some day being at the mercy of a court. Women, on the other hand, are more likely to seek the financial security of legal marriage.
The Future of Cohabitation
But need this be true? Can de facto marriage provide the same security while avoiding the pitfalls of traditional marriage?
It can go a long way. A de facto married couple can, for example, put all their property in joint ownership from the start. That, once done, settles for good the question of who owns what. They can also make a joint will, each naming the other as legatee, and such that the will can be modified only with the concurrence of both. They can establish trusts, execute proxies, bestow powers of attorney on each other such that both can act in the other's behalf in any matters of property, name each other as beneficiaries of life insurance, and so on. Real estate, cars, and so on can be in joint ownership. If you own title to something, then it cannot be taken from you. And finally, a couple can, without formal marriage, execute a legally binding marriage covenant to cover any matter of security important to either, although this, unlike the other steps outlined, would be seen by many to cast doubt upon the love that they believe to be the basis of their relationship.
We can conclude, then, that the legalization of a marriage relationship has little to be said in its favor and much to be said against it. But perhaps most significant of all, de facto marriage has become so generally accepted, ethically, socially, and in every other way, that one can, indeed, wonder whether traditional marriage still has any significant value at all.
(c) Richard Taylor 2002
Richard Taylor is the author of Virtue Ethics: An Introduction and other books. He is a contributing editor of Free Inquiry.