Thursday, April 21, 2005

Getting the State out of Marriage

Vox Day, at

opines that Christian men ought to avoid marrying under state law and should instead simply record the fact of the marriage in the family Bible. This keeps the couple out of the belly of the state domestic relations leviathan and makes sense because the benefits of a state sanctioned marriage are greatly outweighed by the burdens and the intrusiveness of the state. I agree, and I extend this advice to non-Christians as well.

In my work in family law, I have noted that marriage is often a strategic blunder for couples who have nothing to gain from it. Poor folks, for example, often have no employee benefits to extend to a spouse. They have no estate to distribute at death and no significant property to distribute when they break up. They don't pay income taxes. Child support will be enforceable even if the parents were never married via state procedures. In fact, marriage makes it harder to get certain welfare benefits and becomes a big honking expense when the relationship goes bad and divorce is needed. The statistics about children born out of wedlock are not that disturbing to me, since I understand that state recognized marriage is irrational in lower socioeconomic strata. When folks decry bastardy, they are really saying that poor folks ought not to reproduce. Marriage, in and of itself, would do nothing to solve the social problems correlated with bastardy.

Marriage, as a state sanctioned institution, has been stripped of most substantive content and, as Vox Day points out, is not all beer and skittles even for couples who might get some benefit. What do you get for the pains of getting married via state license?

  • You submit all your property and savings and earnings to redistribution in family court on separation or divorce in a manner which probably bears no relationship to what the parties intended and understood. This may be a benefit or a burden, depending on where you stand. You are free to provide for the distribution of property any way you please absent the marriage, but you will lose this freedom when you enter into the one-size fits all marriage contract offered by the state. Rights on dissolution will be determined without regard to notions of justice or fault.
  • In a community property state, you render yourself liable for the debts of your spouse, and this is hardly a benefit to the couple.
  • In some places, you may own real property by the entirety, but most of the benefits of this can be enjoyed with joint ownership with right of survivorship and a covenant not to sell without permission of the joint owner. Indeed, ownership by the entirety may not be desireable as it complicates transfer of property interests.
  • You can die without a will, and your spouse will still get to inherit.
  • You get to compel third parties to recognize your relationship by extending employee benefits to the spouse and through eligibility for any government largesse directed to married persons. You can also sue for criminal conversation if your spouse cheats on you.
  • You get to file taxes jointly, and you get to contribute to an IRA for a non-earner spouse.
  • You get to make health care decisions for your incompetent spouse and are entitled to visit your spouse in the hospital or in prison.
  • You can have conjugal visits with your spouse in prison.
  • You are presumed to be the father of your wife's children born durung marriage, and this may be a benefit or a burden if the little woman has a roving disposition.

I am sure that there are others that I have missed, but they don't add up to much (except for the employee benefits) compared to the hassle factor if you ever fall out with your mate. If employers provided domestic partner benefits, it would be safe to say that state sanctioned marriage would make sense for very few people. Most of the benefits could be handled via contract and estate planning. Why gays would want to marry via state license is mystifying.

Trouble is that in some states you can become married by common law, and then you get socked with the marriage burden. Here in NY, there is no common law marriage, but the state will recognize your marriage if you spend even a little time in a common law jurisdiction and meet the criteria while you are there. A weekend in the Poconos could get you married if you are not scrupulous about avoiding the criteria for common law marriage in that Commonwealth.

NY jealously guards the marriage monopoly, and anyone who solemnizes a marriage where there is no license or performs a marriage ceremony where there is no license can be criminally prosecuted. If you want to have a ceremony, best do it out of state.

Marriage, in its meaningful sense, is the relationship between partners, and state recognition adds nothing to it. In a sense, state involvement has been killing marriage as a substantive institution of civil society ever since the state began to intrude and to define it as nothing more than a particularized economic arrangement. Get the state out of it, and let the institution evolve to meet the demands of the new millenium.

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