Is Marriage Legal?: Philosophy Forums

Philosophy Forums » Social Sciences » Is Marriage Legal? » Is Marriage Legal?

Is Marriage Legal?

Page: 1 2

Is Marriage Legal?

swstephe
Tenured Poster

Usergroup: Moderators
Joined: Apr 20, 2006
Location: borneo island

Total Topics: 28
Total Posts: 3304

Posted 12/17/08 - 11:47 PM:
Subject: Is Marriage Legal?

For a while, I've been debating the legality of marriage during my commute to work. Usually, I start these kinds of debates to figure out how something operates. However, my "devil's advocate", arguing that marriage is an illegal institution, is winning on this case.

Here is a summary of the scary parts:

If marriage is a religious institution, then it should be based on religious authority, and legislating or dealing with it in secular courts or legislation is a violation of separation of church and state and a waste of societies resources to legislate.
Most religions in most modern countries do not have authority or even bother to legislate marriage.
If marriage is a civil contract, then the terms would probably not stand up in modern courts:
- Making a contract for sexual access -- is it prostitution if it is still for "free"?
- Making a contract for exclusive sexual access -- but no penalties or legal consequences for violating the terms.
- Making one person work, without pay or the ability to quit -- isn't that almost slavery?
- Making one financially responsible for the other person for the rest of their lives, even if abusive and often even after the contract has ended.
- Giving someone full legal authority over your affairs for life, and eventual inheritor and default insurance payee and almost no legal recourse for repairing damages due to abuse of that authority.
- Legislating/contractualizing emotional commitment for life, with no penalty for violation.
- Legislating an assumed an automatic change of identity, (by changing a surname), but only for one gender.
- Society gets to pick and choose the terms of the marriage. It decides, not the parties involved, what kind of relationship is expected. One person can sue the other person because they didn't follow society's model for their relationship.

Looking at the history of marriage, there are some interesting twists:

Originally, marriage was a simple declaration between two people. Later, witnessed by public, and possibly registered.
In ancient days, marriage was focused more on property exchange and ownership. In some societies, women were considered "property" by legal terms.
When churches had authority, they registered and restricted who people could or couldn't marry, or how and whether their marriage could end, but only applied those rules to their members.
When religious authority gave way to secular authority, the state took over the role of registering all marriages of its citizens.
Only recently was marriage used as a general rule for legal purposes -- at a time when marriage was widely assumed, (marriages are now in the minority).

I'm married, and quite happy. I don't see any problems with being married, but I was just considering a world in which marriage was not recognized as legal by anyone.

I guess the main question is: how are any of the above statements wrong? Are any of those contracts legal anywhere outside of marriage? Could someone make up their own contract and have it enforced even if it weren't called "marriage"?

Ethics is the measuring of morality. Morality is the measuring of good. Good is the measuring of benefit. Benefit is the measure of values.

Cadrache
Tenured Poster

Usergroup: Members
Joined: Dec 09, 2006
Location: AB, Canada

Total Topics: 104
Total Posts: 2644

Posted 12/18/08 - 01:22 AM:	#2
Mmmm... Can I make a statement? "We're together so we should pay less taxes!" Sorry, no non-drug induced idea at the moment. OK, here's what I noticed. Separation of Church and State. Some points of 'authority' that was removed from church that was included into state would be a regulating factor towards marriages; and possibly a part of the origins of legalizing marriages.
"...There was a writer who asked why it was that when we find positive experiences we say that only the physical facts are real, but in negative experiences we believe that reality is subjective. He made an example of those who say that in birth only the pain is real, the joy a subjective point of view, but that in death it is the emotional loss that is the reality." - Tony Ballantyne, Recursion. _____________________________________________ Truth is want. - The internal state of matters. Truth is Need. - The external state of affairs.

swstephe
Tenured Poster

Usergroup: Moderators
Joined: Apr 20, 2006
Location: borneo island

Total Topics: 28
Total Posts: 3304

Posted 12/18/08 - 03:31 AM:	#3
That reminds me of some points I missed. The church registered. The state took over registration. Then, somewhere along the line, it because a legal contract instead of a registration. There are some people who have real problems over the term "marriage license", since a "license" implies that marriage is not a right, but some privilege granted to someone based on a criteria. Those people want to change it to "marriage certificate", (similar to a birth certificate -- that you are registering that some fact took place). At some point, society switched from certification to legal authority. The court or priest says, "by the authority granted ...", meaning that the people getting married don't have the authority. I often see sitcoms where a couple find out that they were married by someone without proper authorization, so they have to decide whether to marry again or not. I'm not sure about the real legal situation in that case.
Ethics is the measuring of morality. Morality is the measuring of good. Good is the measuring of benefit. Benefit is the measure of values.

Wosret
Tetsugaku no mongaikan

Usergroup: Sponsors
Joined: Mar 29, 2007
Location: Nova Scotia Canada

Total Topics: 14
Total Posts: 2876

Posted 12/20/08 - 11:14 AM:	#4
swstephe wrote: If marriage is a religious institution, then it should be based on religious authority, and legislating or dealing with it in secular courts or legislation is a violation of separation of church and state and a waste of societies resources to legislate. Only in America, and only if your premise that marriage is a religious institution were true, which it isn't. You can have completely secular weddings, with no involvement of a religion whatsoever, and some form of civil union is pretty well globally ubiquitous, and certainly predates all of the world religions. I've heard it speculated that monogamous civil unions started with H. Ergaster 1.6 million years ago. Making a contract for sexual access -- is it prostitution if it is still for "free"? No (and once again this is rather nation specific, prostitution is not illegal everywhere), and specific sexual agreements can, and are written into pre/post nuptial agreements. What is actually illegal is soliciting sex for money, or money for sex (otherwise they would have to wait until you were done having sex before they could arrest you. The sex isn't actually what is illegal). Making a contract for exclusive sexual access -- but no penalties or legal consequences for violating the terms. Not necessarily. If specific sexual agreements are included in a pre/post nuptial agreement, then it can include certain agreed upon penalties. None will surpass contractual violation laws however, and since this is a civil matter no penalties will be of the criminal verity. Making one person work, without pay or the ability to quit -- isn't that almost slavery? Perhaps, but as long as the contract is entered into freely and without coercion, and the terms or requirements of the contract do not violate any existing state or federal laws, then it is the buisness of the parties involved, and no one else's. People can freely enter into any type of contract that they want, as long as it does not violate any existing state or federal laws. Making one financially responsible for the other person for the rest of their lives, even if abusive and often even after the contract has ended. Clearly not after the contract has ended, or the terms have been violated, resulting in the contract's termination. Giving someone full legal authority over your affairs for life, and eventual inheritor and default insurance payee and almost no legal recourse for repairing damages due to abuse of that authority. If that is what one agreed to, and included no escape clauses, then yes. Legislating/contractualizing emotional commitment for life, with no penalty for violation. Depends on the terms of the contract, and what you mean by "penalty". Penalty under criminal law? No. Under civil law? Yes. Legislating an assumed an automatic change of identity, (by changing a surname), but only for one gender. This is false. Unless specific in the contract, in a normal default marriage agreement, either person can take on the other person's name, or they can each take on the other person's name as a third name, and retain their origin names if desired. Society gets to pick and choose the terms of the marriage. It decides, not the parties involved, what kind of relationship is expected. One person can sue the other person because they didn't follow society's model for their relationship. Well, society decides the laws, and if a sought for marriage does not meet the legal requirements, or specified criteria of a marriage under the law then it can be ignored, as invalid. Although this is de jure, not de facto. Anyone or thing can enter into a marriage if they so chose, have the ceremony, and adopt the titles. Even legally change their names to reflect this -- it just will not be legally recognized by the state as a valid contract. They will only stop such activity if it violates existing state or federal law. Pedophilia, zoophilia, incest, and such. Though it is not marriage that is illegal in these cases, it is any form of sexual conduct. Are any of those contracts legal anywhere outside of marriage? yes, as long as it didn't violate any existing state or federal laws. Could someone make up their own contract and have it enforced even if it weren't called "marriage"? yes, as long as it didn't violate any existing state or federal laws. Edited by Wosret on 12/20/08 - 11:23 AM
"If you've got any last words, say 'em now." - Nadie. "I am Horo the Wise." - Horo the Wise.

vykk_draygo
Graduate

Usergroup: Members
Joined: Aug 26, 2008
Location: Minnesota

Total Topics: 8
Total Posts: 177

Posted 12/20/08 - 01:35 PM:	#5
To be honest, I can't really think of anything to add to this thread. I just wanted to say that your devil's advocate is quite insightful, and also hilarious.
"But are not the dreams of poets and the tales of travellers notoriously false?" H.P. Lovecraft

swstephe
Tenured Poster

Usergroup: Moderators
Joined: Apr 20, 2006
Location: borneo island

Total Topics: 28
Total Posts: 3304

Posted 12/20/08 - 08:12 PM:	#6
Wosret wrote: Only in America, and only if your premise that marriage is a religious institution were true, which it isn't. You can have completely secular weddings, with no involvement of a religion whatsoever, and some form of civil union is pretty well globally ubiquitous, and certainly predates all of the world religions. I've heard it speculated that monogamous civil unions started with H. Ergaster 1.6 million years ago. Yes, I guess I used an American phrase, but it would still be applicable to any other secular country where relationship with any religion is supposed to be neutral. I'm not saying that religion is a religious institution, but I had to include that in the arguments because so many people feel that it is. I'm arguing that, for those who believe that marriage is somehow divinely appointed, any secular marriage should be considered invalid. I know that some religions would still consider a religion held outside of their authority to be invalid for their believers. Wosret wrote: No (and once again this is rather nation specific, prostitution is not illegal everywhere), and specific sexual agreements can, and are written into pre/post nuptial agreements. What is actually illegal is soliciting sex for money, or money for sex (otherwise they would have to wait until you were done having sex before they could arrest you. The sex isn't actually what is illegal). Just looking at the definition, "negotiation of exchange of sex for marriage". It is implied that some sex and money will be exchanged. I'm not considering the legality, just whether the terms of the contract would be defended as strongly in court if not granted special privileges under the name "marriage". Let's say a couple makes a civil contract for live-in prostitution. Would the "client" be able to sue the prostitute for refusing to have sex? Would the prostitute be allowed to declare forced sex "rape"? Could the prostitute sue the client for non-payment? If the contract was dissolved, could the either party sue the other for payments for the rest of their lives, (as in the case of some divorce cases)? Wosret wrote: Not necessarily. If specific sexual agreements are included in a pre/post nuptial agreement, then it can include certain agreed upon penalties. None will surpass contractual violation laws however, and since this is a civil matter no penalties will be of the criminal verity. My point was whether such a contract would be valid outside of "marriage". Pre/post nuptial agreements are part of "marriage", which appears to bypass normal consideration for legality. In this case, it would be like making a contract with a prostitute for exclusive sexual access, but violation of that part of the agreement carries no penalties. If their are no penalties, then that part of the agreement wouldn't be enforceable. Some people believe that a marriage contract implies sexual exclusivity, and while it is strongly supported culturally, it doesn't carry any real weight. Wosret wrote: Perhaps, but as long as the contract is entered into freely and without coercion, and the terms or requirements of the contract do not violate any existing state or federal laws, then it is the buisness of the parties involved, and no one else's. People can freely enter into any type of contract that they want, as long as it does not violate any existing state or federal laws. Since slavery is illegal, a contract for slavery would be illegal, even if voluntary and not coerced. Some people make "slave contracts", but it is considered more a private agreement than a legally binding contract. Either side can leave the agreement at any time and can even bring criminal prosecution against the other person despite the contract. Wosret wrote: Clearly not after the contract has ended, or the terms have been violated, resulting in the contract's termination. But on termination of marriage, the party that earns more money is expected to be financially responsible for the other, often for the rest of their lives, even in cases of abuse and criminal activity. If the terms of the dissolution aren't legal outside of marriage, it argues that marriage can't include this kind of implied provision. Wosret wrote: If that is what one agreed to, and included no escape clauses, then yes. In any other contract, would it be possible to invalidate it for failing to explicitly state these terms, or to automatically include penalties for abuse? I know of one woman who married a guy with a huge accident settlement, then declared him incompetent, (due to brain damage), and basically got away with everything. Wosret wrote: Depends on the terms of the contract, and what you mean by "penalty". Penalty under criminal law? No. Under civil law? Yes. The terms of the contract are "emotional commitment". Can you sign a contract which says you will be unconditionally patriotic for the rest of your life? One of marriage's few explicit agreements is to contractually obligate the other to love each other for the rest of their lives. How can you contract something you might not have full control over, and independent of any other conditions? Many older forms of marriage had nothing to do with emotions, (arranged marriages), but was more of a financial merger. Wosret wrote: This is false. Unless specific in the contract, in a normal default marriage agreement, either person can take on the other person's name, or they can each take on the other person's name as a third name, and retain their origin names if desired. Legally, this is true, but culturally and in many government and civil agencies they automatically assume that the wife will take the husband's surname. I have had to deal with this issue many times, made even more difficult by the fact that my wife doesn't have a "surname", (part of her culture). Most people like her have given up trying to reason with westerners and just use their father's name as their surname. For me, it is just an annoyance, not a legal problem. It is the automatic assumption that women will adopt their husband's family identity. Wosret wrote: Well, society decides the laws, and if a sought for marriage does not meet the legal requirements, or specified criteria of a marriage under the law then it can be ignored, as invalid. Although this is de jure, not de facto. Anyone or thing can enter into a marriage if they so chose, have the ceremony, and adopt the titles. Even legally change their names to reflect this -- it just will not be legally recognized by the state as a valid contract. They will only stop such activity if it violates existing state or federal law. Pedophilia, zoophilia, incest, and such. Though it is not marriage that is illegal in these cases, it is any form of sexual conduct. I'm only considering legally recognized marriages. I'm saying that there are certain requirements on personal relationships that can be enforced by courts. I'm looking at whether a marriage should be legally recognized because it gives society the opportunity to apply punishment for not fitting within traditional behavior. For example, someone who sues a spouse for "neglect" due to employment or military service. I can't think of any other situation where someone can sue over values of personal relationships.
Ethics is the measuring of morality. Morality is the measuring of good. Good is the measuring of benefit. Benefit is the measure of values.

Wosret
Tetsugaku no mongaikan

Usergroup: Sponsors
Joined: Mar 29, 2007
Location: Nova Scotia Canada

Total Topics: 14
Total Posts: 2876

Posted 12/20/08 - 10:00 PM:	#7
swstephe wrote: Yes, I guess I used an American phrase, but it would still be applicable to any other secular country where relationship with any religion is supposed to be neutral. I'm not saying that religion is a religious institution, but I had to include that in the arguments because so many people feel that it is. I'm arguing that, for those who believe that marriage is somehow divinely appointed, any secular marriage should be considered invalid. I know that some religions would still consider a religion held outside of their authority to be invalid for their believers. The two times that you use "religion" in this paragraph, do you mean "marriage" and put "religion" by mistake? Otherwise I don't understand it. Assuming the above -- then this question isn't for me. I would assume however that they would see the importance of the secularization of marriage, otherwise they should be considering all marriages that are not performed by their specific religion, or even religious sect, and such an attitude would not be conducive to a healthy multicultural and multi-religious (including non-religious) environment. We need civil and federal legal matters to be blind to such things. Or equality and liberty is at risk. Just looking at the definition, "negotiation of exchange of sex for marriage". It is implied that some sex and money will be exchanged. It isn't explicit, nor is it implied that it is the reason for the contract, or that the money will be direct compensation for the sex. Attempting to contrast the two is frankly silly. We need to have sex, and form partnerships. On a personal note I don't think that prostitution should be illegal -- but attempting to suggest that any amount of exchange of money or resources where sex is involved is a form of prostitution clearly makes enforcing prostitution laws impossible. I'm not considering the legality, just whether the terms of the contract would be defended as strongly in court if not granted special privileges under the name "marriage". Almost certainly not. There is a cultural and social attachment to "marriage". It is important and significant to people. It represents something that they hold dear. Why do you think that it is so important for homosexuals to achieve marriage, and not some "equal but different" thing? Because they want the respect, significance and importance that goes along with the civil union. Just the term is as important as the legal status. Let's say a couple makes a civil contract for live-in prostitution. This is not an apt analogy. I find it somewhat strange that you would even compare the two. It kind of begs the question about what you think of your own personal circumstances, doesn't it? But I wouldn't want to ask you anything insulting. My point was whether such a contract would be valid outside of "marriage". Yes, cohabitation agreements can involve the same type of agreements. Pre/post nuptial agreements are part of "marriage", which appears to bypass normal consideration for legality. They aren't part of marriage. Normally people do not formulate pre/post nuptial agreements. They are rather new in fact. They are also entered into (in the case of a prenuptial agreement) before marriage. Also, cohabitation agreements offer the same type of terms and agreements for non-marriage/people or don't intend to marry individuals. In all cases they are separate from the marriage, and an extra, or add on that has no necessary relationship to marriage. Some people believe that a marriage contract implies sexual exclusivity, and while it is strongly supported culturally, it doesn't carry any real weight. At one time (recently in fact I believe, and likely still in many areas of the world) sexual exclusivity was included in the marriage contract, but I don't it is any longer. It is now merely implied, or expected (unless in the case of specific legal agreements). Since slavery is illegal, a contract for slavery would be illegal, even if voluntary and not coerced. If it is voluntary and not coerced, then it isn't slavery by definition. A slave is someone whose labor is forced, and not of their own free will. There are certain laws that of course their agreement cannot break, but to the extent that it is within the law, it is legal to enter into the agreement. But on termination of marriage, the party that earns more money is expected to be financially responsible for the other, often for the rest of their lives, even in cases of abuse and criminal activity. This is why marriage agreements should be modified before being entered into. The marriage laws are not set up to be unfair in someway, they are normative, and must apply the same for everyone. In most (traditional cases) women make less money, or don't work at all, and put in far more work with children, and are the ones the children stay with upon the separation. The laws are to prevent guys from leaving their families high and dry. This doesn't always work out well, and leaves loopholes (like almost all laws do) to be exploited by those that know how. The law is a blunt instrument however, and it has to generalize, and have laws that apply equally to everyone regardless of circumstances. If the terms of the dissolution aren't legal outside of marriage, it argues that marriage can't include this kind of implied provision. It is legal outside of marriage. In fact if you are living with someone of the opposite sex, and are having sex with them (since the law changed recently in Canada to grant same-sex marriage, this also may now apply to same-sex individuals) the state will forcefully pseudo-marry you, under the title "common-law marriage", and similar dissolution of possessions can be sought upon the conclusion of the relationship. Or, you can enter into your own agreements that doesn't involve either that can end in a dissolution of possessions. In any other contract, would it be possible to invalidate it for failing to explicitly state these terms, or to automatically include penalties for abuse? I believe so. Abuse is of course illegal, and could be grounds for annulment. I know of one woman who married a guy with a huge accident settlement, then declared him incompetent, (due to brain damage), and basically got away with everything. Exploitation of the loopholes I mentioned earlier. The law cannot be so nuanced and precise to accord for all circumstances and situations. It only accounts for general and common cases. The norm. One of marriage's few explicit agreements is to contractually obligate the other to love each other for the rest of their lives. I've never actually read the legal terms of a marriage -- it undoubtedly varies from state to state, and country to country by various degrees -- but are you sure that it legally requires this? I somehow find that hard to believe? Are you sure that it isn't just part of the vows or whatever? I really don't think that they are part of the agreement, but are merely said for the ceremony. After all, they aren't even necessary. You can write your own vows. Legally, this is true, but culturally and in many government and civil agencies they automatically assume that the wife will take the husband's surname. Perhaps, but it isn't assumed in the law, it is assumed by the people for cultural reasons, not for legal ones, so I think this is immaterial. It is the automatic assumption that women will adopt their husband's family identity. I find this annoying and offensive myself, but then I'm a crazy extreme liberal lefty. I'm looking at whether a marriage should be legally recognized because it gives society the opportunity to apply punishment for not fitting within traditional behavior. I don't think that this is true. No one forces people to get married (at least not 'round these parts), and I don't think that the "traditional" behavior is written into the law, but is just expected of people regardless. What the law expects is very little, and is largely open to personal modification with the right resources and lawyers. For example, someone who sues a spouse for "neglect" due to employment or military service. I can't think of any other situation where someone can sue over values of personal relationships. Sure. Children can sue their parents on similar grounds. You can sue just about anyone, for just about anything. Or so it seems.
"If you've got any last words, say 'em now." - Nadie. "I am Horo the Wise." - Horo the Wise.

timw
Assistant Professor

Usergroup: Members
Joined: Nov 14, 2008

Total Topics: 21
Total Posts: 451

Posted 12/22/08 - 01:41 PM:	#8
Kant addresses all this, and it's fascinating. In The Metaphysics of Morals, "Marriage Right" (96, in my edition). In sum, according to Kant as I understand him, there is much in marriage that would be objectionable but for that fact that it is a marriage, and what in marriage makes it all ok is mutuality and adherence to duty. According to me, on the other hand, marriage is an institution beneficial both to communities and individuals and as such is subject to recognition, control, and protection. The details have often been unfair, see e.g., Leviticus. And clearly many if not most marriages contain the seeds of their own destruction. What a marriage is, according to me, is what two people married to each other say it is, whensoever it pleases them to say it. Before I was married, I had all sorts of conventional ideas about marriage. Now I know there is no such thing as marriage qua marriage.

swstephe
Tenured Poster

Usergroup: Moderators
Joined: Apr 20, 2006
Location: borneo island

Total Topics: 28
Total Posts: 3304

Posted 12/23/08 - 03:05 AM:	#9
I guess I should clarify that I wasn't trying to get rid of marriage, but to describe the legality of regulating marriage within civil law. If the state doesn't have the authority to regulate, then "marriages" are illegal outside the agreement between two individuals. I think the state should be restricted to only registering marriages, like they were originally. If the state doesn't have the authority, then any marriages which rely on state authority would need to be revisited. Wosret wrote: The two times that you use "religion" in this paragraph, do you mean "marriage" and put "religion" by mistake? Otherwise I don't understand it. Assuming the above -- then this question isn't for me. I would assume however that they would see the importance of the secularization of marriage, otherwise they should be considering all marriages that are not performed by their specific religion, or even religious sect, and such an attitude would not be conducive to a healthy multicultural and multi-religious (including non-religious) environment. We need civil and federal legal matters to be blind to such things. Or equality and liberty is at risk. Yes, I meant "marriage as a religious institution". Many people use this argument to insist that religious morals be enforced by the state. As soon as civil law makes restrictions about who can marry, (beyond being able to enter an agreement), then there is no equality or liberty. Wosret wrote: It isn't explicit, nor is it implied that it is the reason for the contract, or that the money will be direct compensation for the sex. Attempting to contrast the two is frankly silly. We need to have sex, and form partnerships. On a personal note I don't think that prostitution should be illegal -- but attempting to suggest that any amount of exchange of money or resources where sex is involved is a form of prostitution clearly makes enforcing prostitution laws impossible. This is countering the argument that marriage is the only "valid" context for sexual relationships. I'm trying to show that, since the state can't regulate the contractual agreement in prostitution, because it involves sexual and financial agreements, then it shouldn't regulate marriage either. Wosret wrote: Almost certainly not. There is a cultural and social attachment to "marriage". It is important and significant to people. It represents something that they hold dear. Why do you think that it is so important for homosexuals to achieve marriage, and not some "equal but different" thing? Because they want the respect, significance and importance that goes along with the civil union. Just the term is as important as the legal status. That makes it a "right", not a "privilege", correct? If it is a privilege, then the state could have authority to regulate it, like driving licenses. If it is a right, then any restriction, (when it doesn't cause harm to others), is invalid. Compare any other right. Many people feel that religion is important and significant. They would be horrified at the thought that the state controlled whether people were able to enter or change religions. I think marriage is too personal and significant to allow the state to control. Wosret wrote: This is not an apt analogy. I find it somewhat strange that you would even compare the two. It kind of begs the question about what you think of your own personal circumstances, doesn't it? But I wouldn't want to ask you anything insulting. It is not an analogy, it is a comparison. If the state shouldn't regulate a silly arrangement involving sex and money, then why should it be allowed to regulate marriage. Wosret wrote: Yes, cohabitation agreements can involve the same type of agreements. This gets back to an agreement between two individuals. No state involvement. If one party decides to end the agreement, they just leave and pay the penalties stipulated. In marriage, the state gets involved again. From what I understand, the state doesn't prevent cohabitation agreements from existing where a marriage would be disallowed, although some conservative courts might refuse to hear grievances. Wosret wrote: They aren't part of marriage. Normally people do not formulate pre/post nuptial agreements. They are rather new in fact. They are also entered into (in the case of a prenuptial agreement) before marriage. Also, cohabitation agreements offer the same type of terms and agreements for non-marriage/people or don't intend to marry individuals. In all cases they are separate from the marriage, and an extra, or add on that has no necessary relationship to marriage. Well, legally, they are a part of marriage since they reference the condition of the marriage. However, the state doesn't get involved in pre-nuptial or post-nuptial agreements. In this scenario, any explicit agreement would be valid, but state-authorized agreements would not. Wosret wrote: At one time (recently in fact I believe, and likely still in many areas of the world) sexual exclusivity was included in the marriage contract, but I don't it is any longer. It is now merely implied, or expected (unless in the case of specific legal agreements). Some people argued that marriages were formed to guarantee sexual exclusive relationships. If true, the fact that adultery often carries no penalties whatsoever, (or are dealt with only be the individual), means that reason for the existence of marriage as a state institution is no longer valid. Wosret wrote: If it is voluntary and not coerced, then it isn't slavery by definition. A slave is someone whose labor is forced, and not of their own free will. There are certain laws that of course their agreement cannot break, but to the extent that it is within the law, it is legal to enter into the agreement. It may be forced on some people. The cost and social stigma of divorce may be so strong that someone would prefer to live in an abusive relationship, or one which they are forced into hardships. Maybe "slave" is too strong, compared to "indentured servitude". I've known many women who are unable to leave their marriages and were unaware of the conditions they would face. Wosret wrote: This is why marriage agreements should be modified before being entered into. The marriage laws are not set up to be unfair in someway, they are normative, and must apply the same for everyone. In most (traditional cases) women make less money, or don't work at all, and put in far more work with children, and are the ones the children stay with upon the separation. The laws are to prevent guys from leaving their families high and dry. Any other contract can be modified after going into effect. Even national constitutions can be amended. I don't consider children in this argument as they can be dealt with separately -- the stigma that children of married parents is nearly gone already and the state doesn't take any role in that issue. Wosret wrote: This doesn't always work out well, and leaves loopholes (like almost all laws do) to be exploited by those that know how. The law is a blunt instrument however, and it has to generalize, and have laws that apply equally to everyone regardless of circumstances. But then we are talking about marriage as a "law" rather than a "right" and an "agreement". Why should marriage be so generalized that it can be used to harm so many people. Wosret wrote: It is legal outside of marriage. In fact if you are living with someone of the opposite sex, and are having sex with them (since the law changed recently in Canada to grant same-sex marriage, this also may now apply to same-sex individuals) the state will forcefully pseudo-marry you, under the title "common-law marriage", and similar dissolution of possessions can be sought upon the conclusion of the relationship. Or, you can enter into your own agreements that doesn't involve either that can end in a dissolution of possessions. This is another subject I didn't think of before. Since when does a civil authority have the right to force people into a contract because of their behavior. How can they justify being selective only toward certain types of relationships? From what I understand, to be applied, cohabitation alone isn't sufficient -- they have to refer to themselves as married. Since they have to recognize relationships which they would otherwise ban from entering into marriage, where does the authority to block people from getting married come? Wosret wrote: I believe so. Abuse is of course illegal, and could be grounds for annulment. Actually, I meant "abuse of contract". If there are no penalties for breaking the terms of an agreement, then the term is just a formality. Wosret wrote: Exploitation of the loopholes I mentioned earlier. The law cannot be so nuanced and precise to accord for all circumstances and situations. It only accounts for general and common cases. The norm. Why give a state-authorized common law regarding personal relationships when a personal agreement would be much more precise and specific to the individuals involved. I can think of silly examples where a couple, both in their 90's are required to get a blood test before being allowed to marry. Wosret wrote: I've never actually read the legal terms of a marriage -- it undoubtedly varies from state to state, and country to country by various degrees -- but are you sure that it legally requires this? I somehow find that hard to believe? Are you sure that it isn't just part of the vows or whatever? I really don't think that they are part of the agreement, but are merely said for the ceremony. After all, they aren't even necessary. You can write your own vows. I don't believe there is a marriage agreement. It is just a vague entity that courts support by standard practices. Courts commonly support whatever bias exists in their culture. In America, children are almost always awarded to the mothers. You have to prove the mother a threat to the children to be awarded to the father, regardless of the circumstances. In the country where I live, the children beyond a certain age automatically go with the father since it is assumed he will be able to give better direct financial support. I know there are abuses of the system on both sides. Wosret wrote: I don't think that this is true. No one forces people to get married (at least not 'round these parts), and I don't think that the "traditional" behavior is written into the law, but is just expected of people regardless. What the law expects is very little, and is largely open to personal modification with the right resources and lawyers. No, not forced to marry, but I know of cases where the state has used its authority over marriage to force people to divorce. I'm just arguing that something which gives the state the ability to override an otherwise valid agreement between sane, consenting adults, is a violation of the right of individuals.
Ethics is the measuring of morality. Morality is the measuring of good. Good is the measuring of benefit. Benefit is the measure of values.

ciceronianus
Tenured Poster

Usergroup: Members
Joined: Sep 20, 2008
Location: USA

Total Topics: 11
Total Posts: 1023

Last Blog: Trials in which "Failure is not an option"

Posted 12/23/08 - 02:43 PM:	#10
As those who are married know, marriage is only peripherally about sex. It is about property, and children. The law has always governed such things, and always will. Wisely, marital property and community property jurisdictions generally conceive of marriage as more in the nature of a partnership than a contract. Thus, divorce becomes the dissolution of a partnership. As to the children, the law determines what is in their "best interests" based on a variety of factors. Marriage is quite legal; arguably, in these times, it is nothing else.
"Let us not pretend to doubt in philosophy what we do not doubt in our hearts."--C.S. Peirce "There is nothing so absurd but some philosopher has said it."--Marcus Tullius Cicero "Philosophy recovers itself when it ceases to be a device for dealing with the problems of philosophers and becomes a method, cultivated by philosophers, for dealing with the problems of men."--John Dewey

Page: 1 2

Sorry, you don't have permission to post. Log in, or register if you haven't yet.