There are many ways to define marriage and there are numerous perspectives on which these definitions can be based. Every country or even state has its own legal definition, each culture will have its own cultural and sociological definition, religions will have their own religious definitions and even each era will has its own anthropological definition.
The British anthropologist Eleanor Kathleen Gough Aberle defined marriage in 1959 as „a relationship established between a woman and one or more other persons, which provides that a child born to the woman under circumstances not prohibited by the rules of the relationship, is accorded full birth-status rights common to normal members of his society or social stratum.”
For statistical purposes the United Nations have recommended the following definition:
„the legal union of persons of opposite sex. The legality of the union may be established by civil, religious, or other means as recognised by the laws of each country; and irrespective of the type of marriage, each should be reported for vital statistics purposes.”
It is particularly interesting that the United Nations have added the word “legal” to their definition which provides the institution of marriage with a legal dimension. In the book “A practical treatise on the law of marriage and divorce“, Leonard Shelford explains that “Marriage, in its origin, is a contract of natural law antecedent to its becoming in civil society a civil contract, regulated and prescribed by law and endowed with civil consequences.”
However, the past decades have experienced a decline in marriages amongst the British population as well as a substantial increase of cohabiting partners, who share the same domicile without having some form of contract governing the relationship.
This has given rise to various approaches as to how relationships and families in particular are to be regulated.
The following discussion will begin by taking a look at the current situation in England and Wales. Hereafter, points 3 and 4 will provide a theoretical foundation of the development of marriage and families as well as laws and justice. Finally, the last two points will discuss the recommended reform of the laws governing cohabitation and the current marriage scepticism which is growing in feminist and liberal jurisprudence.
Table of Contents
1. Introduction
2. Marriage, Civil Partnership and Cohabitation – The current situation in English law
3. The Evolution of Families and Marriage
4. The Evolution of Society and Laws
5. Proposed Reforms concerning the Regulation of Cohabitation
6. Why Legal Marriage is becoming obsolete in a pluralist egalitarian society – Feminist and Liberalist Critiques of State Governed Marriages
7. Conclusion
Research Objectives and Core Themes
This work provides a critical evaluation of the evolving landscape of English and Welsh family law, specifically analyzing the tension between traditional marriage, civil partnerships, and the rising prevalence of cohabitation. It explores the sociological and economic shifts that have challenged the legal status of marriage, while examining current reform proposals and the theoretical arguments for and against state-regulated marital institutions in an egalitarian, pluralistic society.
- Theoretical foundations of marriage and family evolution.
- Critical analysis of current legal protections for cohabitants versus married couples.
- Economic and social drivers of change in relationship structures.
- Feminist and liberal critiques regarding state-governed marriage and individual autonomy.
- Evaluation of proposed legislative reforms for cohabitation.
Excerpt from the Book
6. Why Legal Marriage is becoming obsolete in a pluralist egalitarian society – Feminist and Liberalist Critiques of State Governed Marriages
The institution of marriage has long been criticised by feminist legal and social scholars. Throughout history, it has been determined by women’s oppression, with married women having few independent legal rights. Even today it is still largely characterised by gendered division of labour, with more women engaged in domestic and caring work as well as the wife earning a lower wage than their husbands even when working outside the home. The discussion about cohabitation rights after a relationship breakdown is predominantly targeted at the partner who is responsible for the care of the children, which means that the reform is largely aimed at reducing injustice and inequality for a group in society which largely consists of women.
However, the implication of this critique is to demonstrate that as a woman, marriage also puts women in a worse off position. As previously discussed, the gendered division of labour in cohabitation can lead to financial difficulties for the caring partner. However, it can be argued that it is not the cohabitation itself which causes the harm, but the unequal division of labour. In this sense, marriage also reinforces the gendered division of labour, which again results in less female income and that wives are less independent than men. This encourages the idea that women do most of the housework, even when they are also employed outside the home, which enhances the female workload in comparison to their male partners.
According to Card, the problem lies in the fact that marriage is like a state-awarded license that gives claims over another person’s property and person. Not only does this expose individuals to each other, but it also puts legal barriers to separation in place, which inevitably leaves largely the female spouses vulnerable to abuse.
Summary of Chapters
1. Introduction: This chapter defines marriage from various anthropological and legal perspectives and introduces the shift in British society toward increased cohabitation and decreased marriage rates.
2. Marriage, Civil Partnership and Cohabitation – The current situation in English law: The section outlines the legal definitions and specific entitlements associated with marriage and civil partnerships, while contrasting them with the lack of statutory protection for cohabitants.
3. The Evolution of Families and Marriage: This chapter discusses the historical economic adaptation of family structures and how gender roles, influenced by economic sectors, have traditionally shaped marriage.
4. The Evolution of Society and Laws: This part examines legal positivism and liberal justice theories, specifically how these frameworks explain the development of laws and the role of state neutrality.
5. Proposed Reforms concerning the Regulation of Cohabitation: The chapter details the Law Commission’s recommendations for potential statutory schemes to address financial injustice for cohabitants while acknowledging counter-arguments regarding individual autonomy.
6. Why Legal Marriage is becoming obsolete in a pluralist egalitarian society – Feminist and Liberalist Critiques of State Governed Marriages: This section analyzes critiques of marriage as a state-governed institution that reinforces gender inequality and restricts individual liberty.
7. Conclusion: The summary reflects on the trend toward an egalitarian society and suggests that future legal approaches should prioritize inclusivity regardless of marital status.
Keywords
Family Law, Marriage, Cohabitation, Civil Partnership, Gender Equality, Legal Positivism, Liberalism, State Regulation, Economic Independence, Relationship Breakdown, Inheritance Act 1975, Pluralism, Individual Autonomy, Social Evolution, Domestic Labour.
Frequently Asked Questions
What is the core focus of this research?
The work focuses on a critical evaluation of English and Welsh family law, specifically addressing the legal disparity between married couples and cohabitants in a changing, modern society.
What are the primary thematic pillars of the book?
The key themes include the historical evolution of family structures, the analysis of current legal frameworks, feminist and liberalist critiques of marriage, and debates regarding the necessity of state-led marriage regulation.
What is the main research question or goal?
The primary goal is to examine whether the current legal structure—which prioritizes marriage—remains valid in an egalitarian, pluralistic society, and to explore if reforms for cohabitants are necessary or if traditional marriage itself is becoming obsolete.
Which scientific methods are applied in this work?
The work utilizes a legal and socio-economic analysis, relying on primary legal sources, case law (such as Burns v Burns and Bellinger v Bellinger), and secondary literature from feminist and liberal political theory.
What specific topics are discussed in the main body?
The main body covers the current status of marriage vs. cohabitation, the economic evolution of gender roles, theories of justice and legal positivism, and the debate surrounding reforms for cohabitants versus the potential abolition of state-governed marriage.
Which keywords best describe this research?
The most important keywords include Family Law, Marriage, Cohabitation, Gender Equality, State Neutrality, and Individual Autonomy.
How does the author view the "common law spouse" misconception?
The author highlights that there is a high level of misconception among the public, with 59% of cohabitants wrongly believing they have the same legal rights as married couples, which is a major concern regarding legal protection.
What is the author's argument regarding state neutrality?
The author argues that the state's promotion of marriage as an ideal violates the liberal value of neutrality, as it creates an artificial priority for one specific way of life at the potential expense of those who choose not to marry.
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- Alicia Danielsson (Autor), 2014, Family Law Challenges in a Changing Society, Múnich, GRIN Verlag, https://www.grin.com/document/278323
