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"Marriage & Divorce."

I never was attached to that great sect
Whose doctrine is, that each one should select
Out of the crowd a mistress or a friend,
And all the rest, though fair and wise, commend
To cold oblivion, though it is in the code
Of modern morals, and the beaten road
Which those poor slaves with weary footsteps tread,
Who travel to their home among the dead
By the broad highway of the world, and so
With one chained friend, perhaps a jealous foe,
The dreariest and the longest journey go.
- Shelley.

  • 1 - Historically Speaking:
  • 2 - Love 'n Marriage:
  • 3 - Divorce:
  • 4 - Children in Marriage and in Divorce:
  • 5 - Marriage and the Modern Welfare State:
  • 6 - Conclusions.
  • 7 - Notes:

  • [TOC]
    Historically Speaking:-
    The institution of marriage, like all things, has evolved. It took its first shape at a time when religion and superstition reigned supreme. Whatever its origins, marriage has come to be understood as a publicly advertised bargain, a social contract, between a male and a female; whereby they bind their lives and fortunes to one another. Each of them, normally, come from a family structure of their own with the purpose to form the beginnings of a new family structure. A look at the Babylonian experience through the pages of Will Durant's Our Oriental Heritage is instructive.

    "In general the Babylonians were allowed considerable premarital experience. It was considered permissible for men and women to form unlicensed unions, trial marriages, terminable at the will of either party; but the woman in such cases was obliged to wear a [usually a ceramic badge looking like an olive] ... as a sign that she was a concubine."
    If a father did not have an inter-family arrangement in respect to the marriage of his daughter then he sold her off for marriage "those who had marriageable daughters use to bring them once a year to a place where a great number of men gathered round them. A public crier made them stand up and sold them all, one after another. He began with the most beautiful, and having got a large sum for her he put up the second fairest. But he only sold them on condition that the buyers married them." (Herodotus.)

    In these early times, though there was considerable premarital freedom in sexual matters, once a woman was married, there followed a rigid enforcement of marital fidelity. "The adulterous wife and her paramour, according to the Code, were drowned, unless the husband, in his mercy, preferred to let his wife off by turning her almost naked into the streets." A woman who would accuse, however, another woman of adultery, best be sure of her facts; for her failure to prove the charge, under the Hammurabi Code, she shall be obliged to "throw herself into the river." As Durant points out, this law was perhaps "intended as a discouragement to gossip."

    With the economic conditions of early pastoral and agricultural communities, the family structure was brought into its fullest fruition. Without help an adult or two could hardly keep up with the duties of running a farm; children, particularly male children, were much welcomed into a family. In the natural order of ideas, since the beginning of time, it has been thought that all organizations were to have a head: this applied to all things aristocractical and religious (Zeus was the father of gods and men). The family with the father at its head, was, as an institution, the whole weight of religion and morals. To save on the waste that comes about through draining disputes, a system evolved whereby the eldest son, to the exclusion of the younger sons and daughters, succeeded to the rights of the father. Gradually, this system, primogeniture, extended family unity to the higher branches of social organization.

    In times past, a couple might come together because of feelings of love, but more often than not there was little, if any, affection between the two. Affections might arise during the course of the marriage, but likely not: "Owing to the subjection of women there has in most civilized communities been no genuine companionship between husbands and wives; their relation has been one of condescension on the one side and duty on the other." The plain fact is that, historically speaking, it was never thought, until relatively recent times, that affection was essential for the formation of a marriage contract, or for the continuing existence of it.

    The female, incidentally, in a monogamic patriarchal family, was to be virtuous; this was necessary because, in days past, paternity was uncertain. While the fear of hell-fire and the fear of pregnancy were fostered by family, for young women the principal message was that to find a husband, a young woman, above all, must be virtuous. As for a man, he was simply to have the wherewithal to support a prospective family.

    So why did two people come together in marriage? As for men: "Wives are young men's mistresses; companions for middle age; and old men's nurses," so said Francis Bacon. And it was Jane Austen who said, "Single women have a dreadful propensity for being poor, which is one very strong argument in favor of matrimony." Edward Gibbon (1737-94), the author of The History of the Decline and Fall of the Roman Empire, described what he would have liked to have seen in a wife:

    "I have discovered about half a dozen Wives who would please me in different ways, and my various merits: one as a mistress; a second, a lively entertaining acquaintance; a third, a sincere good-natured friend; a fourth, who would represent with grace and dignity at the head of my table and family; a fifth, an excellent economist and housekeeper; and a sixth, a very useful nurse. Could I find all these qualities united in a single person, I should dare to make my addresses, and should deserve to be refused."
    Such a woman, as Gibbon described, did either not exist, or, if she existed, did refuse him; as Gibbon remained a bachelor for all of his life.

    An American judge, John Marshall Gest, in 1911, gave an address to the Pennsylvannia Bar Association. In this address he briefly dealt with Balzac's views on marriage.

    "The viaticum of married life is resignation and self-sacrifice; the bonds of habit, he [Balzac] says, are better than love any day, while society substitutes a lasting sentiment for the mere passing frenzy of nature and creates the family as the foundation of all organized society. In short, in marriage the woman inspires, and the man must do the work, the woman must sacrifice her will, the man his selfishness."
    Balzac's views on the micro level, as Justice Gest further developed, are reflected in his views on the macro level:
    "He [Balzac] believed in a constitutional monarchy and an aristocracy of the feudal type; aristocracy, he said, was the intellect of the social system. He wrote a pamphlet in favor of primogeniture, and he did not believe in 'the rights of man,' human equality, or the ability of the masses of the people to govern themselves. One man should have the power to make laws."

    Love 'n Marriage:-

    The fraternity of the henpecked.
    - Addison.

    What is wedlock forced, but a hell,
    An age of discord and continual strife?
    Whereas the contrary bringeth forth bliss,
    And is a pattern of celestial peace.
    - Shakespeare: Henry VI.

    And now your matrimonial Cupid.
    Lash'd on by time, grows tired and stupid.
    For story and experience tell us
    That man grows old and woman jealous.
    Both would their little ends secure;
    He sighs for freedom, she for power:
    His wishes tend abroad to roam,
    And hers to domineer at home.
    - From Prior's Alma.

    Marriage from love, like vinegar from wine --
    A sad sour, sober beverage -- by time
    Is sharpened from its high celestial flavor
    Down to a very homely household savor.
    - From Byron's Don Juan.

    Now make no mistake, dear reader: I am all for love, but marriage? Since Victorian times, love has played a central role in the reason as to why two people should marry one another. For a good many couples, however, if love and marriage go together, it often does not do so for long. In fact, I would venture to say that this is a dangerous notion, for as soon as the married couple figure they are no longer in love with one another, they immediately, and for no other reason head off to divorce court with little regard to the commitments each to the other, to their family and to their children. Better we should have the Victorian view, and if the married couple love one another, then so much the better. As a social contract marriage has no natural relationship to love. Marriage, it has been thought, belongs to society -- and our laws continue to reflect this view.

    But love has come to be, so many times, an antitheses to marriage. As Dryden wrote, "That very name of wife and marriage Is poison to the dearest sweets of love." (Amphitryon.) Marriage, rather than being a bed of roses, is often a field of battle; it is an affair of perpetual compromise; it makes, as Oscar Wilde said, "a life of deception absolutely necessary for both parties."

    And as Simone de Beauvoir (Jean-Paul Sarte's partner in love and in life) put it:

    "Marriage is obscene in principle in so far as it transforms into rights and duties the mutual relations which should be founded on a spontaneous urge; it gives an instrumental and therefore degrading character to the two bodies in dooming them to know each other in their general aspect as bodies, not as persons. The husband is often chilled by the idea that he is doing a duty, and the wife is ashamed to find herself given to someone who is exercising a right over her. ... marriage is a very alienating institution, for men as well as for woman. ... It's a very dangerous institution -- for men who find themselves trapped, saddled with a wife and children to support; dangerous for women, who aren't financially independent and end up depending on men who can throw them out when they are 40, and dangerous for children because their parents vent all their frustrations on them." (The Second Sex.)


    "Our law considers marriage in no other light than as a civil contract." - Blackstone.

    ".... A bad marriage is like an electric thrilling machine: it makes you dance, but you can't let go." - Ambrose Bierce.

    While divorce might well be treated as a separate topic, I include it here, simply on the basis that there would never be a need for a divorce, where, if, in the first place, the couple didn't get themselves married.

    Marriage, as statistics will readily show, is a failure for many of us. Once upon a time a failed marriage had to be worn through life, like a dead albatross: -- there was no such thing as divorce. In England, parliament in earlier times could sever a marriage, could grant a divorce, but only upon the petition of a well-heeled and well-connected citizen. This parliamentary role was eventually passed off to the courts which would grant a divorce on proper grounds. (Usually on the grounds of adultery, though in time, cruelty was recognized as grounds. These days, in Canada, one need only be separated from their spouse for a period of one year or more.)

    Divorce in Babylon was simple enough for a man under the Hammurabi Code. Besides having a right to divorce his wife on the grounds of childlessness, adultery, incompatibility, or careless management of the household, he could just simply restore his wife's dowry to her and say, "Thou art not my wife." It was not so easy for the wife, however; if she were to say to him, "Thou art not my husband," in this event, then, he was free to drown her. Durant observed (Our Oriental Heritage) that though a wife may not divorce her husband, she was free to leave him, if "she could show cruelty on his part and fidelity on her own; in such cases she could return to her parents, and take her marriage portion with her, along with what other property she might have acquired." After making the observation that women were not so free, even in England, until the end of the nineteenth century, Durant continued:

    "If a woman's husband was kept from her, through business or war, for any length of time, and had left no means for her maintenance, she might cohabit with another man without legal prejudice to her reunion with her husband on the latter's return. In general the position of woman in Babylonia was lower than in Egypt or Rome, and yet not worse than in classic Greece or medieval Europe. To carry out her many functions -- begetting and rearing children, fetching water from the river or the public well, grinding corn, cooking, spinning, weaving, cleaning- she had to be free to go about in public very much like the man. She could own property, enjoy its income, sell and buy, inherit and bequeath. Some women kept shops, and carried on commerce; some even became scribes, indicating that girls as well as boys might receive an education. ... Among the upper classes ... the women were confined to certain quarters of the house; and when they went out they were chaperoned by eunuchs and pages. Among the lower classes they were maternity machines, and if they had no dowry they were little more than slaves."
    In Victorian England, just so that evidence of cruelty might be forthcoming, a man who desired a divorce, would, not infrequently, arrange with his wife to hit her before the servants. In latter times an arrangement could be made with a third party so that there might be proof of adultery. Proving cruelty and adultery has, today, become less onerous, but these grounds still exist in our archaic laws. That two people who passionately desire to part from one another, should be forced to live together and to endure one another, is one thing; but to force them into a public proceeding, is another.

    Couples who live together with or without the "benefit" of marriage, it seems to me, should not have a separate law to govern the termination of their relationship: -- Divorce law -- just like all "buggy and whip law" -- should be abolished. Simple contract law should be permitted to govern extended, intimate relationships; and, importantly, those relationships that bring children into existence. No one should have to be forced into a court to end any relationship, unless there has been a breach of the contract, and where that breach cannot be settled (just like any contractual dispute).

    Children in Marriage and in Divorce:-
    The brutal fact, as was pointed out by Bertrand Russell, is that love as a relation between men and women was ruined by their desire to marry and have children. (Not only love, in Russell's view, is ruined by marriage and children, "but the whole contribution that women can make to civilization, has been stunted ...")

    It is thought that marriage is the best social institution for the procreation and protection of children. (This has not always been the case, for example, the view of the Christian church, derived from the teachings of St. Paul, was that marriage primarily existed to prevent the sin of fornification.) But it is not the marriage itself that creates the best environment for the upbringing of children, but rather a cohesive family unit. Marriage laws do not make a family stick together: custom, mutual need and affection, these are what keep a family together. There is no evidence that a family's bonding is enhanced by the law; and to legally enforce a family to stay together, as if that could be done, hardly is conducive to friendly family relations.

    In the best of circumstances, it will usually be that a child has two parents. To create the best circumstances for children, one should do what one can do, especially for any child of one's own. Certainly "making babies" is one of the most serious activities in society, likely it should be one of the few areas to be governed by the state; in fact, it is not only one of the few areas that are not governed by the state, but, it seems, "making babies" is encouraged by the state. What is more important than defending the institution of marriage by passing "tough" divorce laws, is for the state to do what it can to make sure that for any child born that there is at least two responsible adults, who have the wherewithal and the dedication to the long term business of rearing that child.

    Marriage and the Modern Welfare State:-
    Because of attitudes (for example, religion and sexual activity) and of events (for example, birth control) in the last 30 years, the social pressure to be married has been considerably reduced, and gone, generally, is the fear of hell-fire and the fear of pregnancy. But the real impact on marriage -- likely its death blow -- is that impact which the policies of the modern welfare state is having on it. What will become of men when fatherhood (an important social institution in itself) is taken over by the state. Women now look to the state -- not the individual father -- in the upbringing of their children. They have as many children as they desire, and the fathers, as a practical proposition, have no responsibility. What kind of an impact this will have on the psychology and activities of men is not something that maybe can be predicted, but I would argue it may have a far more profound impact than most people would suppose.

    And what is to become of the institution of marriage? One goal is to have love, unfettered by the cold bonds of law. But another goal is to have family units into which the young can snuggle and from which they will take values, hopefully of the kind that will strengthen both the family and the state. Can we eliminate the institution of marriage and advance on both of these goals, or advance one without losing ground on the other?


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    2012 (2019)

    Peter Landry