Things To Act
Friday, March 05, 2004
Reader responses--complexities of family law
I said: "Marriage should be marked by love between spouses. I’m not sure that there are any immediate public policy implications here, except perhaps that we should reserve the concept of marriage for unions marked by genuine love, and not the sort of informal civil-union style arrangements between two nonintimate adults that some predict will be inevitable under any civil union scheme."

Correspondent replies “I think there are a number of problems with such a suggestion. Foremost is that it undermines your next paragraph about strongly discouraging divorce. A stipulation that marriage is reserved for a relationship of genuine love seems to leave a very easy "out" when a couple "falls out of love". Such a stipulation would also essentially rule out arranged marriages, which most of us probably consider a good thing, but is closely tied to cultural issues, as is particularly evident among minorities. It would likely discourage the marriage of unwed parents, contrary to Church teachings that this is the ideal option (assuming the parents are of marriageable age). Finally, making this a requirement for entering into marriage seems to belie the fact that love is typically developed more fully subsequent to marriage than prior to marriage. It seems that this would be, overall, a fairly strong deterrent to marriage, rather than encouraging it. On the other hand, omitting such a requirement leaves the system open to abuse (marriages of convenience, for example, which already essentially fit the bill of the "informal arrangements" you mention in your post).”

I apologize for not being as clear as I wanted to be. I agree with the general thrust of this critique that the government shouldn’t be trying to quantify the degree of love within a marriage relationship. What I was trying to say above was in response to a suggestion I’ve read elsewhere that the government ‘deregulate’ marriage and allow any two consenting adults to enter into a civil-union style arrangement. That argument is based on the general libertarian approach, as well as the theory that if we allow the benefits (‘legal incidents’) of marriage to same-sex intimate couples, there’s no real reason not to allow them to nonintimate adults as well (such as single siblings living together, or roommates who wish to incorporate their personal affairs, or other endless combinations). I think such an approach could work, and is probably better than many alternatives. Nevertheless, I’m not sure that it’s the ideal. I think I’d prefer to see a system in which marriage itself (though not necessarily paler legal imitations, though they could exist) is reserved for more intimate relations—at least, the expectation would be that couples would enter marriages with the intention of maintaining a union marked by love (exactly what would happen if the love didn’t develop as they hoped it would would be a different issue). Perhaps, however, such a preference would be impossible to justify and purely secular grounds. Interesting food for thought.

I said, "Gender roles: specific responsibilities in marriage are set forth, particularly that men are responsible to provide for their families. And on this point, feminism has led to a diversity of opinions. The main public policy implications seem to warrant legally requiring a man to support his dependents (particularly after a divorce). Applying the principle outside of marriage could help stem the current tide of fatherlessness and single mothers plaguing society."

Correspondent replies: “I think there is a strong case that current divorce, alimony, and child support laws that make a man responsible for supporting his family after divorce actually make divorce easier, not harder, because women are more free to leave a bad relationship without an insurmountable financial penalty. (For example, see Wendy McElroy's discussions of the topic at I don't know whether that's a good thing or a bad thing, as it also makes it easier to divorce for less substantial reasons, and may unfairly penalize some men, even as it requires others to live up to their responsibilities.

“I think these are very difficult issues for government to resolve.”

Again, interesting points. Some quick skimming of McElroy’s works didn’t turn up a specific reference to that study, but I get a general sense of where she’s coming from. The exact issues of responsibility and divorce are certainly complicated (one reason I punted earlier). I suppose I would prefer to see a system in which somehow all of the following concerns are resolved:
*Couples have the strongest possible incentives to stay together.
*Abused parties are free to exit from bad situations without undue consequences.
*Anyone involved in bringing a child into the world is held responsible for his support and upbringing in some fashion.
*Innocents are not held accountable for the actions of others.
*Rights and responsibilities are shared equitably between divorcing parents.

Obviously, some of these areas are going to conflict—the stronger the incentives to stay together, the harder it may be for abused men or women to escape from dangerous marriages. My impression is that the stereotypical ‘traditional marriages’ of the 1950s era had too many cases of abuse and too little freedom, while today’s marriages have too much freedom and too little incentive to avoid divorce. Exactly what to do to change that is, of course, a difficult problem.

One major problem with equity comes from the fact that parental roles are not symmetrical. If a mother stays at home to raise her children, her lesser workforce experience leaves her at a comparative economic disadvantage following a divorce. Her opportunity cost to stay home was to forego advancing in a professional career (which, as Nibley points out, is itself a dubious goal, but that’s a different issue). I’m not sure that failing to compensate her in some way for this would be equitable—McElroy’s argument seems to imply that the woman would stay in the marriage because of fear of poverty if our current alimony schemes were scaled back. I’m not sure that fear of poverty is a moral incentive to keep marriages together (though I suppose one could argue that it’s employed for men under the current scheme). In any event, the children certainly shouldn’t have to suffer for the mistakes of the parents, which renders any solution that leaves the children in poverty (or in a bad environment) less than ideal. If men and women split both childrearing and breadwinning equally in the marriage, then diving the responsibilities evenly after a divorce would be an easy solution. However, that doesn’t seem to be the model for the vast majority of marriages.

In non-marriage related public policy, it seems just to require that anyone who fathers a child out of wedlock be held responsible for at least half the child’s support, regardless of whether he desires parental visitation rights. I would guess that systematic enforcement of such a requirement would at least encourage fornicating couples to use birth control, though perhaps I overestimate the power of economic incentives. And of course, since there are already considerable rumblings about lack of due process and presumption of guilt in the child support system as it presently operates, perhaps the status quo is already close to this system, and other problems are more relevant to the current out-of-wedlock birth rate.

Feel free to respond further. This whole exercise is more about organizing my own thoughts than about trying to convince anyone else, at this point.

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