Marriage in the 21 century

             One such legal requirement that illustrates the apparent separation of the modern view and legal and religious regulation is that of divorce. In her article Lynn Wardle states that  that marriage regulation has become a matter of ‘grave concern to the political state’. Historically, the only way a divorce could be granted Prior to 1670 is if it could be shown to have never existed in the first place, either through inability to consent (e.g. insanity) or by want of capacity to marry (e.g. pre-contract or the two parties were related by a previous marriage). The grounds for divorce included adultery, cruelty and heresy. This, somewhat limited grounds for divorce rendered it very hard to obtain a divorce. For a divorce to be granted the husband would have to have petitioned the House of Lords to grant the divorce, and only then, after the House of Lords granted the decree was the marriage terminated. With the introduction of the Matrimonial Causes Act 1857 the law of divorce saw an impressive overhaul as it introduced new grounds by which a divorce could be granted. For example adultery was made available to woman and men as a grounds for divorce. However it was with the passing of the Matrimonial Cause Act 1937 that, for the first time in English Law introduced a grounds of divorce that was based on no fault of either partner, that being incurable insanity, and this trend furthered itself. During the 1960’s there was an increased amount of divorces, and the English legal system started talking about allowing irretrievable breakdown as a grounds for divorce. In 1973 the Matrimonial Causes Act 1973 was introduced and put into practice one sole ground of divorce which is still the present law, that of irretrievable breakdown. However this factor alone is not enough since the petitioner to the divorce has to prove one of five other factors, laid down in section 1(2) of the Matrimonial Causes Act 1973: a) adultery b) the respondents behaviour c) the respondents desertion d) two years separation or e) five years separation. Amongst this backdrop we can see how the law has and still does seek to impose strict legal regulation of marriage when it fails, and I shall now go onto analyse if the present law resonates with the present, contemporary view of marriage.

           Even if the marriage has broken down and irretrievable breakdown has occurred the respondent still, as mentioned earlier has to prove one of the other factors. If he or she is unsuccessful then the divorce cannot be granted, even if it is proven that irretrievable breakdown has occurred. This bar to divorce signifies an affront to the modern day view of marriage being purely based on romance and private commitment because if these two things are no longer present in a marriage then the marriage should no longer exists and either party should be able to escape the marriage by way of divorce. Legal regulation however maintains that they cannot legally be separated and thus should continue in marriage regardless of whether there is romance. The laws view on divorce is wholly separated from subjectivity, and relies on a purely objective, identifiable way of determining whether a divorce should be granted thus rendering any subjective feelings of romance and private commitment void. With so much legal regulations surrounding the grounds for divorce the matter of marriage becomes more and more formal and less about individuality and personal feelings of romance. However, the major provisions of the Family Law Act 1996 which were rejected by the Government at the time aimed at linking the contemporary view of marriage with contemporary regulation and relaxing the law of divorce by allowing irretrievable breakdown as the sole ground for divorce without need of proof of one of the other five factors. If this had been implemented it would have allowed the contemporary view of marriage as a public commitment of private love and romance to come into line with the law because it would have placed greater emphasis on Romance and individuality. However, what remains is the prior Matrimonial Act and the five grounds for divorce are still in place. Therefore the area of legal regulation of divorce does not resonate with the contemporary view of marriage. All the regulations mentioned above are positive requirements that are required for a legal marriage. The modern view of marriage as love and commitment can be evaluated with reference to the fact that for a marriage to be legal there needs be no existence or proof of existence of love by the husband or wife, so effectively the couple can get married without the existence of any emotional bond present. Therefore the legal regulations only lay down the formalities of the marriage but not the emotional requirements. Therefore, rendering the legal regulations at odds with the contemporary view of marriage being about romance and love.

              Any question regarding legislative and religious regulation when considering the contemporary view of marriage needs to be addressed in light of the historical and present functions and purposes of marriage. When addressing these functions it is important to remember that the reasons for marriage will inevitably change throughout history and these changes will affect the religious and legal regulation that surround marriage. From a time when marriage was seen as little less than a way for woman to gain property rights, based on a purely contractual basis, to a time when it was considered the best institution for child rearing, to a modern, somewhat hedonistic base for marriage it is clear that as the functions of marriage change so does the regulation of these functions. As George Duby points out there has been two ‘major aspects of the changing world of marriage’ a) The older view in which marriage regulated sexual desire and b) settling landholding by married couples. If we take the first and arguably the most important (historical) function of the modern English marriage it becomes apparent why the contemporary view does not know go in hand in hand with the regulations. Historically the tool of marriage was used as a method of passing on and granting of property rights to the spouse, as Christopher N.L. Brooke points out in his article, ‘Marriage and Society in the Middle Ages’ the King of England at the time, Henry II is an example of using the institution of marriage as a ‘vehicle for dynastic , and landed ambition’ . In many corners of the world the dowry system was used and best represents why the legal regulations were so stringent and not linked to the contemporary view when determining marriage. A dowry is described as ‘ A present made by a man to the father of his prospective bride as a condition of her being allowed to marry’. Therefore the basis of marriage when a dowry or bride price is used takes on the form, at least historically, of a contract between the two parties. Just like a contract between business man and his client it is purely objective and free from romantic feeling. Therefore when one takes this historical view of marriage coupled with the other function of marriage that being a method for granting property rights it becomes clear why in the past, regulations especially legal ones, do not represent the modern current view of marriage, since historically it was about the legal regulation of a contract and the passing on land between spouses. This purpose of marriage stems as far back as the Ancient Greeks where for a marriage to be obtained no legal requirements need be met, as they saw a marriage as a way to regulate the business agreement between the two families involved. This rather primitive view of the function of marriage however changed as time developed and the function of marriage shifted to a family function. During the eighteenth century and onwards there was an increase feeling that the function of marriage was to procreate and educate children in a caring, loving and stable environment. Marriage provided all the things that it was though children needed; stability with two continuous parents, love, evidently shown by the marriage they consecrated and financially stable. Thus with this awareness came legal regulations that ensured the primary focus of marriage was for family purposes. Therefore, placing greater emphasis, not on romance but child rearing. It is noted that marriage is the best way to ensure religious precepts are taught, and it is this reason why religious regulations placed stringent rules on marriage and shows us that the contemporary view of marriage did not resonate with regulations at the time. One such example of legal regulations that aimed at fueling the family purpose was the granting of parental rights. As it stood, parental rights were somewhat limited if the parents were not married. By getting married it ensured that each parent had a right to their children. Because of this requirement more and more people became married and in turn taught their children the religious values of Christianity. Therefore one can see that the purpose and the regulations surrounding marriage still did not involve any significant Romance element to it, but rather took on a regulatory formation to ensure children were born into married families and that society worked effectively. However, the importance of marriage purely based on parental rights and responsibilities has diminished over time and we now are approaching a purely hedonistic, loving purpose of marriage whereby people marry because they want to commit to each other and for no other reason. This is what is known as the contemporary view of marriage, and in today’s society the main view is exactly this within secular society. This assertion is backed up with statistics showing the amount of people getting married before having children. In 2006 the percentage of parents who were not married but who had at least one dependant child is recorded as 40%,a marked increased from the mid nineteenth century .  Another explanation that supports the claim that regulations do not represent the modern day view of marriage is by way of the formalities individuals in a relationship need to complete before marriage is allowed. One such requirement is that of the reading of the bans. In the Church of England before a couple is entitled to marry they have undergo an announcement in church of their intention to marry. Without this requirement being satisfied the couple cannot get married under church law. However, with the contemporary view of romance being prevalent in today’s society we can see that this requirement once again goes against the modern view since if two people love each other and want to commit to one another they should be able to do so without the need for a public vowel prior to getting married. Furthermore, if the location that the couple chooses is not the Parish where they grew up they have to attend the Church in which they want to get married into for three consecutive Sundays before the Church allows them to marry. Clearly these two formalities do not resonate with the contemporary view. Another affront to the contemporary view is that of divorcees being able to remarry. However, since 2002 divorcees, in certain circumstances have been able to remarry, thereby perhaps reflecting a move by the Church and the religious regulations towards a more contemporary view of the institution known as marriage. Historically in particularly the Roman Empire, divorce was easily obtained and even actively encouraged and was thought of as nothing more than the ‘dissolution of a contract’. However during the protestant reformation it was seen as an affront to the sacrament of marriage and therefore became extremely hard to obtain. The gradual acceptance by the Church to divorcees who want to remarry therefore goes some way in upholding the contemporary view of marriage since if two people who want to get married love each other and are willing to commit to one another should be allowed to remarry and declare their love for one another. Even though, as mentioned earlier there are certain legislative regulations that limit the scope for divorce it would be wholly wrong to assert that recent reforms have had no impact of upholding the contemporary view of Romance and public commitment of private love. One example is the increased use of Alternative dispute resolution prior to the parties divorcing. This is an example of where the law seeks to promote the modern view of marriage because it tries to promote the romance in the relationship and reconcile each of the parties, and inevitably stops the marriage dissolving.  

                  If the contemporary view of marriage is that of private love and romance then it goes without saying that anyone should be able to get married to whomever they fall in love with. However legal regulation stipulates that this is untrue. We have seen previously how homosexual couples are barred from marriage which goes against the contemporary view. If we now look at other relationships that clearly, no matter how distasteful they may appear to society at large, we can once again see that the modern view of marriage is not being reflected in the regulations. Incest is sexual activity between close family members, whether that be Mother- Son, Father- Daughter or Niece – Nephew etc. In the United Kingdom the Marriage Act 1984 section 1 states the prohibited degrees of relationships that cannot be entered into. These include the incestural relationships mentioned above. However, it could be argued that if the contemporary view of marriage is purely about the private love and romance involved in any given relationship then these types of relationships should be allowed and thus allowed to get married. Clearly, there exists scientific evidence to state why these kinds of relationships should no exists by way of procreation but as inferred earlier the idea of marriage is no longer heavily associated with procreation so the scientific evidence does not lead us to an explanation of why, according to the modern view of marriage they are banned from the institution. As the law stands in the United Kingdom cousin are allowed to marry. This however, does not then adequately explain why other relations cannot form relationships and eventually get married. It is important to note that historically and culturally there are differing views of these types of relationships. For example, in Judaism it is permitted for a man to marry his niece, as Leviticus 18 states it is only illegal for a woman to marry her nephew. However, legal regulations in the United Kingdom, states this kind of relationship illegal and prohibits the marrying of the two. Here we do not just have a battle between the contemporary view and regulations but between the religious regulations (albeit Jewish regulations) and the legal regulations. If both parties to the incestuous  relationship have consented then it is put forward that they should be allowed to marry.

            Another example of how the contemporary view may not resonate with legal and religious regulation is when one looks at polygamous marriages. Polygamous marriage is a form of marriage in which a person has more than one spouse at the same time, as opposed to monogamy in which a person has only one spouse at a time. Polygamous marriages were and still are regularly practiced amongst religious sects such as the Mormons. Once again, the legal regulations state that one cannot be married to two people at any one time, and there is even the sanction of criminal punishment , that being Bigamy which carries a prison sentence in the United Kingdom as well as other countries, i.e Australia where the maximum sentence is 5 years imprisonment. By criminalising bigamy it therefore clearly promotes the monogamous Christian relationship model and therefore bars people entering into marriages with people they love. The barring of this kind of relationship therefore cannot be linked with the contemporary view of marriage since in Polygamous relationship their exists the modern view of romance. If two or more people consent to the type of relationship that polygamy results in why should they be barred from marrying one another, as long as they have the required mental element.  However the Roman Catholic stance remains a hostile one to polygamy. Under the Catechism of the Catholic Church, it states polygamy as being ‘not in accord with the moral law’. This clearly indicates that the religious regulations, and in particular the Catholic stance to marriage is to uphold morals and marriage is seen as  void of any feeling s of individuality, and therefore seeks to promote the monogamous style of marriage as the best as it is undivided and exclusive. Therefore the stance by the Catholic Church resonates with the religious and legal regulations of marriage and therefore does not resonate with the modern view of marriage. The Roman Catholic approach to polygamy therefore can be linked with the above assertion made earlier that marriage, according to religious regulations is there to regulate society and pass down moral values by way of legal and religious regulation and explains why the regulations do not match the modern secular view of marriage. In my opinion polygamy should be allowed in a secular society that places greater emphasis on love and attraction than on religious or moral guides but still in today’s world the marriage regulations that exist do not reflect this view.

                           In conclusion, the essay has sought to present reasons why marriage has in the past been steeped with legal and religious regulation, and is still today somewhat. The states involvement with marriage and the regulation of marriage has significantly increased over time and we now see greater state involvement over the last two-hundred years than in any other time period. What is clear is that whether the contemporary view reflects the actual position of marriage is a question that will differ depending on who you ask the question to. In my view the regulation of marriage, both legal and religious do not reflect in any way shape or form the view that marriage is solely about love and romance, because if it did there would be no point in regulating it. Legal regulations are detached from any form of emotional involvement so no legal regulations can ever reflect the sole view of marriage being purely about love and romance because once you start regulating something you usurp all the subjectivity out of it and replace with objective findings. This has been shown with the requirement of marriage being only about a man and a woman. This illustrates that the law seeks to, in some way quantify and describe what marriage is with reference to physical features such as gender rather than emotional features of love, romance and commitment. The contemporary view finds no asylum in religious regulations either since they too, in some way seek to define marriage based on physical aspects and place emphasis on the formalities needed for a valid marriage which takes the emotional side away. If regulations did reflect the modern view marriage would no longer be seen legally or religiously as a heterosexual institution, barring homosexual people from marrying and enjoying the benefits that marriage brings. So what is the future of marriage regulation in the United Kingdom and for Christianity?  We have seen that people are becoming more reluctant to the idea of marriage and the question alone needs a whole paper devoted to it, but what is clear is that in 2011 the contemporary view of marriage is being rejected through legal and religious regulations even though the majority of the public agree with the contemporary view.

        

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