Marriage was a private enterprise for hundreds of years and should be that way again argues Professor Yorick Wilks.
For all the successes of privatisation, I would like to propose another area of citizens' lives from which to remove Government: marriage. The State has not been in the marriage business very long in England: common law marriage was only abolished in 1753 and State registration of marriages began in 1840. There could be unexpected benefits if all state recognition of and control of marriage laws were to cease in this country, and marriage reverted to a religious or secular private ceremony.
Look first at the polygamy issue, where extraordinary muddle exists: the social services now support multiple wives for some groups, while for the majority population the Crown still undertakes bigamy prosecutions. A report today says that social services are going to treat all wives in polygamous marriages as single persons for tax purposes and not reduce their allowances because of the presence of a husband in the home. This has provoked a predictable furore of comment in the Daily Mail about the Government subsidising immorality and illegal immigration but it is all misconceived. The marriage allowance now applies only to people over 77, so how else could such wives be treated except as single persons, just as monogamous wives are? On the other hand someone keen to control immigration, especially of those likely to be charges on the State, might then well ask why such additional single persons should be imported at all? If there were no public marriage they could not be, though it would be possible to have a general law allowing one to ”import“ a single person, or perhaps only the other parent of one’s children.
If the state were wholly removed from marriage, and of course, divorce, then marriage would simply be a matter of whatever one's religion licensed. There would no longer be any need to discriminate between monogamous and polygamous situations, nor between homosexual and heterosexual ones. The British Council of Mosques have actively discussed the issue of whether Muslims should ever use British divorce courts, rather than relying simply on the talaq, the three-fold 'I divorce you', and the answer seems basically that they should not. A decision this week that an English court can and will overrule a Sharia divorce has been something of a set back, perhaps temporary, to the total autonomy of Muslim marriage. Yet other religious marriages are totally autonomous from the state, particularly Anglican marriage, which still needs no state registration at all. This is seen by many as an immigration loophole and vicars have been jailed for over-exerting this privilege. But it remains an important relic of state-free marriage and I think we should consider a return to a more consistent version of it.
If we did that, we would have a form of genuine multiculturalism rather than what exists now, which is a would-be universal law, broken formally or informally by groups who receive exemptions. That is clearly a highly unsatisfactory situation: it can appear multicultural, but it is not, in that it involves minorities exempted from general laws, as opposed to the genuinely multicultural, which is that of different cultures subject to their own rules by choice.
One objection would be that this situation would be unfair to those belonging to no religious tradition at all since, with no civil marriage, there would be nowhere for them to go. This is an improbable outcome: and humanist marriage services would develop spontaneously as they have for burial, and indeed both already exist.
Another benefit from the state removing itself from marriage would be to render the current obsessions with the status of 'partnerships' official and unofficial, homo- and heterosexual, all beside the point. At the moment in the UK, one can register a same sex partnership officially, which then carries the same implications for property, children etc as civil marriage. But now, with the government’s commitment to gay marriage, and the knock-on effect there will surely be for churches and religions that refuse to conduct them, the whole matter is set to descend into enormous acrimony, which this proposal would avoid.
There would be huge gains in removing the whole partnership and same-sex marriage discussion from the public arena: if marriage itself became an essentially private contractual arrangement, religiously sanctified or not according to choice, there might well no longer be any demand for the recognition of partnerships simply because there would no longer be any official married state to contrast partnerships with. For homosexuals, who wanted some real form of marriage, unlike heterosexuals who wish not to get married under any circumstances, there should be no problem finding churches, new or old, who would meet their need.
There will be far fewer problems arising from this proposal than would have been the case a few decades ago, because so many legal changes have already been made to reduce the legal significance of marriage, that is to say, to reduce perceived discrimination between the married and unmarried states. Such moves include tax codes, notions of illegitimacy, the support and management of children in adoption and declaration of parentage cases, and welfare payments which are now wholly dependent on cohabitation rather than any official status. The almost complete legal equivalence of men and women has made many of the legal functions of traditional marriage irrelevant, such as the assumption of the financial support of women by men, and the, still present, assumption that mothers rather than fathers must care for children.
The remaining problems this proposal would not solve, without other conventions being established, would be concerned with inheritance. The removal of marriage from the official sphere would necessitate greater use of wills, in the way that partners now have to write wills to ensure that their joint property is not lost to blood relatives on the death of one of them. In intestacy, the current rule that legal spouses always inherit in such cases in England would have to go. The simplest solution would be a campaign to encourage those marrying, under any rite, to make a legal contract at the time. This is becoming increasingly common in any case, both here and in the US, with the prevelance of multiple marriages.
It might be good public policy to have a rule of one-tax-free-inheritor, independent of sex, who could receive one’s estate tax-free so as not to force someone close to move after a death. Doing that would remove the current “two-spinster” anomaly, whereby an elderly sister can be forced to move on the death of one of them, as they are not currently eligible for the benefits of civil partnerships.
With additional inheritance safeguards, this proposal - to remove the notion of marriage from all statutes and from the control of the State - could put us back to something closer to how marriage was in England for nearly two thousand years, and possibly gain back some of its earlier respect.
Yorick Wilks is Professor of Artificial Intelligence at the University of Sheffield, and is also a Senior Research Fellow at the Oxford Internet Institute. He studied maths and philosophy at Cambridge, where he got his PhD in 1968.