L. Neil Smith's
Number 183, July 22, 2002


It's Time To Privatize Marriage
by Wendy McElroy

Special to TLE
Previously published at

"Why is marriage declining?" -- the question buzzes in the news. I believe one reason is because marriage has become a 3-way contract between two people and the government, which is regulated by the State from wedding vows to divorce decrees. Marriage should be privatized. Let people make their own marriage contracts according to their conscience, religion, and common sense. Those contracts could be registered with the State, recognized as legal, and arbitrated by the courts but the terms would be determined by those involved.

According to a 2000 Census report, almost half of the adults in America are unmarried and, for the first time, single-person households outnumber married families with children. A glut of books and articles is suddenly declaring marriage to be either obsolete or rediscovered.

The latest flap alleges a de facto boycott of marriage by men. The National Marriage Project at Rutgers University just released a study ominously subtitled, "Why Men Won't Commit." Meanwhile, the British Office for National Statistics recently issued "Marriages in 2000: England and Wales" that states, "The down trend in the marriage rate for men continued in 2000, with 27.7 men marrying per 1,000 unmarried men in 2000, compared with 28.1 in 1999."

Commentators are speculating, "why?" Professor Stephen Baskerville of Howard University lays the blame for the "male boycott" at the doorstep of family laws that disadvantage them. He writes "Virtually every American now knows a father whose life has been taken over and destroyed by a divorce court."

Journalist Glenn Sacks and shared-parenting advocate Dianna Thompson explain why the US marriage rate has declined over 40% over the last 40 years to an historic low. A man who marries today faces a 50% chance of divorcing within eight years. The woman is most likely to win physical custody, making the man "a '14 percent dad' -- a father who is allowed to spend only one out of every 7 days with his own children." He will lose most of the marital assets and pay at least 1/3 of his take-home salary in child support. Having a family has never before been such a risky proposition for men. Commentators speculate that more men are deciding not to take the risk, and some of the data seems to back them up. (Click for sources of data.)

The four-decade decline in marriage coincides with two events:

First, the dawn and "blossoming" of politically correct feminism. Fortunately, political correctness in all its manifestations is losing the ability to affect the public debate.

Second, the increasing involvement of government in marital contracts. For example, no-fault divorce was imposed by virtually every state legislature and by the courts between 1969 to 1985. "No-fault" was even retrofitted onto marriages entered into under a different set of laws.

Unfortunately, government intrudes more and more. The State's intrusion is always for a "noble" cause: to protect women from domestic violence, to remove children from abusive homes. But, somehow, the violence and abuse is never solved by a mountain of new family law or by the multi-billion dollar "family law industry."

Society could spend decades on the dubious prospect of reconstructing the family court system, the child protective services and all the multi-billion dollar industries that have grown up around the State regulation of marriage and family. Or it could embrace a more immediate and practical solution. Existing law could be used to punish acts of violence, such as wife beating, in the criminal court system. The civil courts could register, recognize, and legally enforce the terms of private marriage contracts.

Get politics out of marriage: privatize it. Make marriage an enforceable contract between two people who agree on the terms of union and of divorce, including the terms of child custody and support. The contract could be as broadly or narrowly phrased as people wish. In the nature of marriage, most contracts would probably be broadly defined, leaving many or most details to private and personal negotiation: for example, who does the dishes. In all likelihood, those areas that now cause such social turmoil are the ones that would be narrowly defined: for example, who gets the custody of children upon divorce and what are the support arrangements.

In all likelihood, several standard contracts would evolve that could be adapted to handle the most common marriage preferences. This would solve the problems caused by imposing a "one-size-fits-all" contract upon marriage. Author David Boaz speculates, "If they [a marrying couple] wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses. Those with assets to protect could sign prenuptial agreements that courts would respect. Marriage contracts could be as individually tailored as other contracts..." And their diversity shouldn't affect their legality any more than the diversity of other contracts makes them unenforceable.

Imposing a "one-size-fits" model of marriage is folly when governments cannot even formulate a consistent definition of that one size.

Consider the hot potato of same-sex marriage. Various states and legislatures are waging political warfare over the question, "what constitutes a marriage?" The European Court of Human Rights just recognized a British transsexual as being a "woman" with the right to legally marry, despite the fact that British law denies both claims. On Friday, Ontario, Canada accorded legal status to same-sex marriage but delayed enforcement for two years in order to let Parliament figure out, "what is marriage?"

My definition: a legal marriage is whatever contract for a committed relationship is agreed to by those involved.

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