If you follow me on Facebook, you know that I support state recognition of same sex unions. I, like most people my age, have several gay friends. I also have gay friends who have been in relationships that would otherwise constitute a common law marriage, left those relationships, and subsequently found themselves facing difficult legal issues. “How do I get my spouse off the mortgage?” “My car is in his name, I make the payments, but he’s threatening to take it away. What do I do?” If my friends had been in a “normal” opposite sex marriage, their issues would have been resolved by laws governing the division and distribution of martial property. It is the lack of access to those laws that is causing a great deal of controversy.
I won’t get into why I think opposing state recognition is foolish and wrong. There are plenty of voices making those arguments, and probably with more eloquence than I can muster. But I will argue the point that the state doesn’t even need to be involved in marriage at all.
Traditionally, marriage law, much like the law in general, was a patriarchal affair. The wife received nothing if a marriage ended, there was no alimony, and child custody was fairly one-sided. Then the sixties happened, and various legal scholars, such as Joseph McKnight and Louise Raggio, reformed the law to provide protections the wife and generally making the law much fairer. Today, these laws still provide some much needed protections, and lawyers build entire careers and (lucrative) practices around navigating these laws. But more and more often, people are opting out of those laws and instead entering into pre-martial agreements (commonly known as prenuptial agreements) in order to avoid the vagaries of family law. I once worked for an attorney who told me that people who don’t get a premarital agreement are “living in a fantasy world.” Family law is very expensive and many of the decisions left to judges whose decisions are unpredictable and difficult to overturn. So it is no surprise that many couples create their own private law and utilize alternative dispute resolution systems like mediation and collaborative law rather than traditional courts.
If such systems are increasingly being used instead of the one size fits all martial property laws, then it begs the question of whether such laws are even necessary. If couples desire the legal recognition of their relationship in order to obtain the benefits (and disadvantages) of recognition, then they could enter into a form contract that incorporates the laws as they exist today. Such contracts could be one page and accessible for free of charge on the Internet. The availability of a basic marriage contract moots concerns that couples would have to hire an attorney before getting married. Concerns of bigamous marriages could be mitigated with express representations that the other party is not already married. A scorned woman is bad enough without giving her a fraud claim. The gay marriage issue is resolved because a gay couple’s supposedly illegitimate marriage is now merely a contract to be enforced.
Other laws would have to be reformed to make sure things don’t deviate too much from the status quo, such as making contracts enforceable against sixteen year olds who’s parents (foolishly) allow them to get married. But despite some initial challenges, such a system would be an overall improvement. Couples would pay more attention to the legal ramifications of their unions, the state would be further removed from civil society (thus reducing the potential for state abuse), and people would be allowed more freedom to enter into other marital arrangements that the state currently won’t recognize, subject to basic contract law principles. Paternalists will argue that such a system risks abuse itself. But given that premarital agreements are almost inescapable (at least under Texas law) that risk is there regardless of whether such agreements exist.
People are capable of governing themselves, and that includes their marriages. They do not need the state to decide how to divide up their property if their marriage ends, much less who they can and cannot marry. And for those who think that the state is the best institution to regulate society’s most basic institution, I would suggest you examine its track record thus far.