Marriage laws refer to the legal requirements which determine the validity of a marriage, which vary considerably between countries.
In some jurisdictions but not all, marriage relationships may be created by the operation of the law alone. Unlike the typical ceremonial marriage with legal contract, wedding ceremony, and other details, a common-law marriage may be called "marriage by habit and repute (cohabitation)." A de facto common-law marriage without a license or ceremony is legally binding in some jurisdictions but has no legal consequence in others.
Rights and obligations
- Giving a husband/wife or his/her family control over a spouse's s*xual services, labor, and property.
- Giving a husband/wife responsibility for a spouse's debts.
- Giving a husband/wife visitation rights when his/her spouse is incarcerated or hospitalized.
- Giving a husband/wife control over his/her spouse's affairs when the spouse is incapacitated.
- Establishing the second legal guardian of a parent's child.
- Establishing a joint fund of property for the benefit of children.
- Establishing a relationship between the families of the spouses.
These rights and obligations vary considerably between societies, and between groups within society.
Marriage is an institution that is historically filled with restrictions. From age, to race, to social status, to consanguinity, to gender, restrictions are placed on marriage by society for reasons of benefiting the children, passing on healthy genes, maintaining cultural values, or because of prejudice and fear. Almost all cultures that recognize marriage also recognize adultery as a violation of the terms of marriage.
The United States has had a history of marriage restriction laws. Many states enacted miscegenation laws which were first introduced in the late 17th century in the slave-holding colonies of Virginia (1691) and Maryland (1692) and lasted until 1967 (until it was overturned via Loving v. Virginia). Many of these states restricted several minorities from marrying whites. For example, Alabama, Arkansas, and Oklahoma banned Blacks in particular. States such as Mississippi and Missouri banned Blacks and Asians. States such as North Carolina and South Carolina banned Blacks and Native Americans, and some states such as Georgia, South Carolina, and Virginia banned all non-whites.
It is a relatively new practice that same-s*x couples are being granted the same form of legal marital recognition available to mixed-s*xed couples. In the United States, the 1996 Defense of Marriage Act (DOMA) explicitly defines marriage for the purposes of federal law as between a man and a woman and allows states to ignore same-s*x marriages from other states (though states arguably could do this already). Forty-one US states currently define marriage as between a man and a woman. Three of those states have statutory language that pre-dates DOMA (enacted before 1996) defining marriage as such. Thirty states have defined marriage in their constitutions. Arizona is the only state that has ever defeated a constitutional amendment defining marriage as only between a man and a woman (2006), but it subsequently passed one in 2008.
Societies have often placed restrictions on marriage to relatives, though the degree of prohibited relationship varies widely. With few exceptions, marriages between parents and children or between full siblings have been considered incest and forbidden. However, marriages between more distant relatives have been much more common, with one estimate being that 80% of all marriages in history have been between second cousins or closer. In modern times this proportion has fallen dramatically, but still more than 10% of all marriages are believed to be between first and second cousins. In the United States, such marriages are now highly stigmatized, and laws ban most or all first-cousin marriage in 30 states. Specifics vary: in South Korea, historically it was illegal to marry someone with the same last name.
Many societies have required a person to marry within their own general social group, which anthropologists refer to as endogamy. An example of such restrictions would be a requirement to marry someone from the same tribe.
Restrictions against polygamy have been common. Opposition to the recognition of Deseret as a State by the Federal government was founded on opposition to the once-practiced polygamous marriages of Mormons.
In many jurisdictions, a civil marriage may take place as part of the religious marriage ceremony, although they are theoretically distinct. Some jurisdictions allow civil marriages in circumstances which are notably not allowed by particular religions, such as same-s*x marriages or civil unions.
Marriage and religion
Among the precepts of mainstream religions are found, as a rule, unequivocal prescripttions for marriage, establishing both rituals and rules of conduct.
In the Hebrew Bible (Old Testament)
Betrothal (erusin), which is merely a binding promise to get married, is distinct from marriage itself (nissu'in), with the time between these events varying substantially. Since a wife was regarded as property in those days, the betrothal (erusin) was effected simply by purchasing her from her father (or guardian); the girl’s consent is not explicitly required by any biblical law. Like the adjacent Arabic culture (in the pre-Islamic period), the act of marriage appears mainly to have consisted of the groom fetching the bride, although among the Israelites (unlike the Arabs) the procession was a festive occasion, accompanied by music, dancing, and lights. To celebrate the marriage, week-long feasts were sometimes held.
In biblical times, a wife was regarded as chattel, belonging to her husband; the descripttions of the bible suggest that she would be expected to perform tasks such as spinning, sewing, weaving, manufacture of clothing, fetching of water, baking of bread, and animal husbandry. However, wives were usually looked after with care, and men with more than one wife were expected to ensure that they continue to give the first wife food, clothing, and marital rights.
Since a wife was regarded as property, her husband was originally free to divorce her for any reason, at any time. A divorced couple were permitted to get back together, unless the wife had married someone else after her divorce.
In Judaism, marriage is viewed as a contractual bond commanded by God in which a man and a woman come together to create a relationship in which God is directly involved.
Christians variously regard marriage as a sacrament, a contract, a sacred institution, or a covenant. From the very beginning of the Christian Church, marriage law and theology have been a major matter. The foundation of the Western tradition of Christian marriages have been the teachings of Jesus Christ and the Apostle Paul.
Christians often marry for religious reasons ranging from following the biblical injunction for a "man to leave his father and mother and cleave to his wife, and the two shall become one,"
Divorce and remarriage while generally not encouraged are regarded differently by each Christian denomination. Most Protestant Churches allow people to marry again after a divorce. The Eastern Orthodox Church allows divorce for a limited number of reasons, and in theory, but usually not in practice, requires that a marriage after divorce be celebrated with a penitential overtone. In the Roman Catholic Church, marriage can only be ended by an annulment where the Church for special reasons regards it as never having taken place.
"'...So they are no longer two, but one. Therefore what God has joined together, let man not separate."
Anglicans, Catholics, and Eastern Orthodox consider marriage termed holy matrimony to be an expression of divine grace, termed a sacrament or mystery. In Western ritual, the ministers of the sacrament are the husband and wife themselves, with a bishop, priest, or deacon merely witnessing the union on behalf of the church, and adding a blessing. In Eastern ritual churches, the bishop or priest functions as the actual minister of the Sacred Mystery (Eastern Orthodox deacons may not perform marriages). Western Christians commonly refer to marriage as a vocation, while Eastern Christians consider it an ordination and a martyrdom, though the theological emphases indicated by the various names are not excluded by the teachings of either tradition.[dubious ] Marriage is commonly celebrated in the context of a Eucharistic service (a nuptial Mass or Divine Liturgy). The sacrament of marriage is indicative of the relationship between Christ and the Church.
"The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament."
The mutual love between man and wife becomes an image of the eternal love with which God loves humankind. The celebration of marriage between two Catholics normally takes place during the public liturgical celebration of the Holy Mass, because of its sacramental connection with the unity of the Paschal mystery of Christ (Communion). Sacramental marriage confers a perpetual and exclusive bond between the spouses. By its nature, the institution of marriage and conjugal love is ordered to the procreation and upbringing of offspring. Marriage creates rights and duties in the Church between the spouses and towards their children: "[e]ntering marriage with the intention of never having children is a grave wrong and more than likely grounds for an annulment."
According to current Catholic legislation governing marriage, "The essential properties of marriage are unity and indissolubility; in Christian marriage they acquire a distinctive firmness by reason of the sacrament. Divorce is not recognized, but annulments predicated upon previously existing impediments may be granted. Offspring resulting from annulled relationships are considered legitimate. Remarried persons divorced from a living, lawful spouse are not separated from the Church, but they cannot receive Eucharistic communion.
For Protestant denominations, the purposes of marriage include intimate companionship, rearing children and mutual support for both husband and wife to fulfill their life callings. Protestants are generally not opposed to the use of birth control and consider marital s*xual pleasure to be a gift of God.
Historically, five competing models of marriage in Christianity have shaped Western marriage and legal tradition:
- The Protestant Reformationists replaced the Roman Catholic sacramental model.
- Martin Luther saw it as a social "estate of the earthly kingdom...subject to the prince, not the Pope."
- John Calvin taught that marriage was a covenant of grace that required the coercive power of the state to preserve its integrity.
- Anglicans regarded marriage as a domestic commonwealth within England and the church. By the 17th century, Anglican theologians had begun to develop a theology of marriage to replace the sacramental model of marriage. These "regarded the interlocking commonwealths of state, church, and family as something of an earthly form of heavenly government."
- The secularism of the Enlightenment emphasized marriage as a contract "to be formed, maintained, and dissolved as the couple sees fit."
Members of the Church of Jesus Christ of Latter-day Saints (LDS) believe that "marriage between a man and a woman is ordained of God and that the family is central to the Creator's plan for the eternal destiny of His children." The LDS belief is that marriage between a man and a woman can last beyond death and into eternity.
||This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (August 2011)|
Islam also commends marriage, with the age of marriage being whenever the individuals feel ready, financially and emotionally.
In Islam, polygyny is allowed while polyandry is not, with the specific limitation that men can only have no more than four wives at any one time, with the requirement that they are able and willing to partition their time and wealth equally among the respective wives.
For a Muslim wedding to take place, the bride and her guardian must both agree on the marriage. Should either the guardian or the girl disagree on the marriage, it may not legally take place. In essence, while the guardian/father of the girl has no right to force her to marry, he has the right to stop a marriage from taking place, given that his reasons are valid. The professed purpose of this practice is to ensure that a woman finds a suitable partner whom she has chosen not out of sheer emotion.
From an Islamic (Sharia) law perspective, the minimum requirements and responsibilities in a Muslim marriage are that the groom provide living expenses (housing, clothing, food, maintenance) to the bride, and in return, the bride's main responsibility is raising children to be proper Muslims. All other rights and responsibilities are to be decided between the husband and wife, and may even be included as stipulations in the marriage contract before the marriage actually takes place, so long as they do not go against the minimum requirements of the marriage.
In Sunni Islam marriage must take place in the presence of at least two reliable witnesses, with the consent of the guardian of the bride and the consent of both the bride and the groom. Following the marriage, the couple may consummate the marriage. To create a religious contract between them, it is sufficient that a man and a woman indicate an intention to marry each other and recite the requisite words in front of a suitable Muslim, nowadays priest will be asked to officiate. The wedding party usually follows but can be held days, or months later, whenever the couple and their families want to, however there can be no concealment of the marriage as it is regarded as public notification due to the requirement of witnesses.
In Shia Islam, marriage may take place without the presence of witnesses as is often the case in temporary mutta marriage (prohibited in Sunni Islam), but with the consent of both the bride and the groom. Following the marriage they may consummate their marriage.
In the Bahá'í Faith marriage is encouraged and viewed as a mutually strengthening bond, but is not obligatory. A Bahá'í marriage requires the couple to choose each other, and then the consent of all living parents.
Hinduism sees marriage as a sacred duty that entails both religious and social obligations. Old Hindu literature in Sanskrit gives many different types of marriages and their categorization ranging from "Gandharva Vivaha" (instant marriage by mutual consent of participants only, without any need for even a single third person as witness) to normal (present day) marriages, to "Rakshasa Vivaha" ("demoniac" marriage, performed by abduction of one participant by the other participant, usually, but not always, with the help of other persons). The Hindu Widow's Remarriage Act 1856 empowers a Hindu widow to remarry. Though traditionally widow remarriages were frowned upon and are still considered taboo in many parts of India, the society is changing and the incidence of widow remarriage is on a rise.
Although sati, or the practice of a widow immolating herself on her husband's funeral pyre, was officially outlawed by India's British rulers in 1829, the rite persists. The most high-profile sati incident was in Rajasthan in 1987 when 18-year-old Roop Kanwar was burned to death.
The Buddhist view of marriage considers marriage a secular affair and as such, it is not considered a sacrament. Buddhists are expected to follow the civil laws regarding marriage laid out by their respective governments.
In a Sikh marriage, the couple make rounds around the holy book called Guru Granth Sahib four times and the holy man speaks some words from the Guru Granth Sahib in the form of kirtan. The ceremony is known as 'Anand Karaj' and represents the holy union of between two souls that are united as one.
For the most part, religious traditions in the world reserve marriage to heteros*xual unions, but there are exceptions including Unitarian Universalist, Metropolitan Community Church, Quaker, United Church of Canada, United Church of Christ and Reform Jewish congregations, some Anglican dioceses, and various Neopagan faiths. This model is currently recognized by various jurisdictions and religious denominations.
Religious groups have differing views on the legitimacy of polygyny, the practice of a man taking more than one wife. It is allowed in Islam and Confucianism, though in most areas today it is uncommon. Judaism, Christianity and Hinduism have allowed polygny in the past, but it is prohibited by their mainstream modern authorities.
Religion has commonly weighed in on the matter of which relatives, if any, are allowed to marry. Relations may be by consanguinity or affinity, meaning by blood or by marriage. On the marriage of cousins, Catholic policy has evolved from initial acceptance, through a long period of general prohibition, to the modern-day requirement for a dispensation. Islam has always allowed it, while Hindu strictures vary widely.
The financial aspects of marriage vary between cultures and have changed over time.
In some cultures, dowries and bride prices continue to be required today. In both cases, the financial arrangements are usually made between the groom (or his family) and the bride's family; with the bride in many cases not being involved in the arrangement, and often not having a choice in whether to participate in the marriage.
In Early Modern Britain, the social status of the couple was supposed to be equal. After the marriage, all the property (called "fortune") and expected inheritances of the wife belonged to the husband.
A dowry was not an unconditional gift,[in Early Modern Britain?] but was usually a part of a wider marriage settlement. For example, if the groom had other children, they could not inherit the dowry, which had to go to the bride's children. In the event of her childlessness, the dowry had to be returned to her family, but sometimes not until the groom's death or remarriage.
In some cultures, dowries continue to be required today (for example, in Sudan), while some countries impose restrictions on the payment of dowry. In India, nearly 7,000 women were killed in 2001 over dowries, and activists believe that figures represent only a third of the actual number of such murders.
Bride price and dower
In other cultures, the groom or his family were expected to pay a bride price to the bride's family for the right to marry the daughter, or dower, which was payable to the bride. This required the groom to work for the bride's family for a set period of time.
In the Jewish tradition, the rabbis in ancient times insisted on the marriage couple entering into a marriage contact, called a ketubah. Besides other things, the ketubah provided for an amount to be paid by the husband in the event of a divorce or his estate in the event of his death. This amount was a replacement of the biblical dower or bride price, which was payable at the time of the marriage by the groom to the father of the bride.
Morning gifts, which might also be arranged by the bride's father rather than the bride, are given to the bride herself; the name derives from the Germanic tribal custom of giving them the morning after the wedding night. She might have control of this morning gift during the lifetime of her husband, but is entitled to it when widowed. If the amount of her inheritance is settled by law rather than agreement, it may be called dower. Depending on legal systems and the exact arrangement, she may not be entitled to dispose of it after her death, and may lose the property if she remarries. Morning gifts were preserved for many centuries in morganatic marriage, a union where the wife's inferior social status was held to prohibit her children from inheriting a noble's titles or estates. In this case, the morning gift would support the wife and children. Another legal provision for widowhood was jointure, in which property, often land, would be held in joint tenancy, so that it would automatically go to the widow on her husband's death.
Islamic tradition has similar practices. A 'mahr', either immediate or deferred, is the woman's portion of the groom's wealth (divorce) or estate (death). These amounts are usually set on the basis of the groom's own and family wealth and incomes, but in some parts these are set very high so as to provide a disincentive for the groom exercising the divorce, or the husband's family 'inheriting' a large portion of the estate, especially if there are no male offspring from the marriage. In some countries, including Iran, the mahr or alimony can amount to more than a man can ever hope to earn, sometimes up to US$1,000,000 (4000 official Iranian gold coins). If the husband cannot pay the mahr, either in case of a divorce or on demand, according to the current laws in Iran, he will have to pay it by installments. Failure to pay the mahr might even lead to imprisonment.
In many countries today, each marriage partner has the choice of keeping his or her property separate or combining properties. In the latter case, called community property, when the marriage ends by divorce each owns half. In many legal jurisdictions, laws related to property and inheritance provide by default for property to pass upon the death of one party in a marriage firstly to the spouse and secondly to the children. Wills and trusts can make alternative provisions for property succession.
In some legal systems, the partners in a marriage are "jointly liable" for the debts of the marriage. This has a basis in a traditional legal notion called the "Doctrine of Necessities" whereby a husband was responsible to provide necessary things for his wife. Where this is the case, one partner may be sued to collect a debt for which they did not expressly contract. Critics of this practice note that debt collection agencies can abuse this by claiming an unreasonably wide range of debts to be expenses of the marriage. The cost of defense and the burden of proof is then placed on the non-contracting party to prove that the expense is not a debt of the family. The respective maintenance obligations, both during and eventually after a marriage, are regulated in most jurisdictions; alimony is one such method.
Some have attempted to analyze the institution of marriage using economic theory; for example, anarcho-capitalist economist David D. Friedman has written a lengthy and controversial study of marriage as a market transaction (the market for husbands and wives). In the past the economic status of women was enhanced through marriage; however, as more women work nowadays, men gain more economically than women.
In some countries, spouses are allowed to average their incomes; this is advantageous to a married couple with disparate incomes. To compensate for this somewhat, many countries provide a higher tax bracket for the averaged income of a married couple. While income averaging might still benefit a married couple with a stay-at-home spouse, such averaging would cause a married couple with roughly equal personal incomes to pay more total tax than they would as two single persons. This is commonly called the marriage penalty.
Moreover, when the rates applied by the tax code are not based on averaging the incomes, but rather on the sum of individuals' incomes, higher rates will definitely apply to each individual in a two-earner households in progressive tax systems. This is most often the case with high-income taxpayers and is another situation where some consider there to be a marriage penalty.
Conversely, when progressive tax is levied on the individual with no consideration for the partnership, dual-income couples fare much better than single-income couples with similar household incomes. The effect can be increased when the welfare system treats the same income as a shared income thereby denying welfare access to the non-earning spouse. Such systems apply in Australia and Canada, for example.
Sometimes people marry for purely pragmatic reasons, sometimes called a marriage of convenience or sham marriage. For example, according to one publisher of information about "green card" marriages, "Every year over 450,000 United States citizens marry foreign-born individuals and petition for them to obtain a permanent residency (Green Card) in the United States." While this is likely an over-estimate, in 2003 alone 184,741 immigrants were admitted to the U.S. as spouses of U.S. citizens. Many more were admitted as fiancés of US citizens for the purpose of being married within 90 days. Regardless of the number of people entering the US to marry a US citizen, it does not indicate the number of these marriages that are convenience marriages, which number could include some of those with the motive of obtaining permanent residency, but also include many people who are US citizens. One example would be to obtain an inheritance that has a marriage clause. Another example would be to save money on health insurance or to enter a health plan with preexisting conditions offered by the new spouse's employer. Many other situations exist, and, in fact, all marriages have a complex combination of conveniences motivating the parties to marry. A marriage of convenience is one that is devoid of normal reasons to marry.
Some people want to marry a person with higher or lower status than them. Others want to marry people who have similar status. Hypergyny refers to the act of seeking out those who are of slightly higher social status. In most cases, hypergyny refers to women wanting men of higher status. Isogyny refers to the act of seeking out those who are of similar status.
In most societies, the death of one of the partners terminates the marriage, and in monogamous societies this allows the other partner to remarry, though sometimes after a waiting or mourning period.
Many societies also provide for the termination of marriage through divorce. Marriages can also be annulled in some societies, where an authority declares that a marriage never happened. In either event the people concerned are free to remarry (or marry). After divorce, one spouse may have to pay alimony.
The absolute right of two married partners to consent to divorce was only recognized in western nations in recent decades. In the United States no-fault divorce was first recognized in California in 1969 and the final state to recognize it was New York in 1989.
Several cultures have practiced temporary and conditional marriages. Examples include the Celtic practice of handfasting and fixed-term marriages in the Muslim community. Pre-Islamic Arabs practiced a form of temporary marriage that carries on today in the practice of Nikah Mut'ah, a fixed-term marriage contract. The prophet Muhammad sanctioned a temporary marriage—sigheh in Iran and muta'a in Iraq— which can provide a legitimizing cover for s*x workers. Muslim controversies related to Nikah Mut'ah have resulted in the practice being confined mostly to Shi'ite communities.
Early theories explaining the determinants of postmarital residence—with or near the husband's or wife's families, for example—(e.g., Lewis Henry Morgan, Edward Tylor, or George Peter Murdock) connected it with the s*xual division of labor. However, to date, cross-cultural tests of this hypothesis using worldwide samples have failed to find any significant relationship between these two variables. However, Korotayev's tests show that the female contribution to subsistence does correlate significantly with matrilocal residence in general; however, this correlation is masked by a general polygyny factor. Although an increase in the female contribution to subsistence tends to lead to matrilocal residence, it also tends simultaneously to lead to general non-sororal polygyny which effectively destroys matrilocality. If this polygyny factor is controlled (e.g., through a multiple regression model), division of labor turns out to be a significant predictor of postmarital residence. Thus, Murdock's hypotheses regarding the relationships between the s*xual division of labor and postmarital residence were basically correct, though, as has been shown by Korotayev, the actual relationships between those two groups of variables are more complicated than he expected.
Contemporary views on marriage
Many people have proposed arguments against marriage for various reasons. These include political and religious criticisms, reference to the divorce rate, as well as celibacy for religious or philosophical reasons.
Many controversies have arisen over the centuries in relation to marriage – including issues relating to the suitability of partners of different denominations, faiths, tribes or races, the acceptable number and minimum age of wives, the rights of partners, especially wives, and wider family obligations. For example, a contemporary controversy of particular significance in the USA concerns the exclusion of homos*xual relationships from legal and social recognition and the rights and obligations it provides. Social conservatives opposed to same-s*x marriage in some countries claim that any attempt to define marriage to include anything other than the union of one man and one woman would "deprive the term of its fundamental and defining meaning." In other countries, polygamy is a "socially conservative" practice. Advocates of same-faith marriage and same-race marriage may criticize the legalization of interfaith marriage and interracial marriage, respectively.
The state of Massachusetts has sued the U.S. federal government over its definition of marriage. The lawsuit, brought by the first state to legalize gay marriage, said the 1996 Defense of Marriage Act (DOMA) infringed on a state's sovereign right to define marital status. The lawsuit alleges that DOMA infringed on a state's sovereign right to define marital status and is unconstitutional.
Power and gender roles
Feminist theory approaches opposite-s*x marriage as an institution traditionally rooted in patriarchy that promotes male superiority and power over women. This power dynamic conceptualizes men as "the provider operating in the public sphere" and women as "the caregivers operating within the private sphere". "Theoretically, women ... [were] defined as the property of their husbands .... The adultery of a woman was always treated with more severity than that of a man." "[F]eminist demands for a wife's control over her own proerty were not met [in parts of Britain] until ... [laws were passed in the late 19th century]." This patriarchal dynamic is contrasted with a conception of egalitarian marriage in which power and labour are divided equally, and not according to gender roles.
The performance of dominant gender roles by men and submissive gender roles by women influence the power dynamic of a marriage. In some American households, women internalize gender role stereotypes and often assimilate into the role of "wife", "mother", and "caretaker" in conformity to societal norms and their male partner. bell hooks states "within the family structure, individuals learn to accept s*xist oppression as 'natural' and are primed to support other forms of oppression, including heteros*xist domination." "[T]he cultural, economic, political and legal supremacy of the husband" was "[t]raditional ... under English law".
In the US, studies have shown that, despite egalitarian ideals being common, less than half of respondents viewed their opposite-s*x relationships as equal in power, with unequal relationships being more commonly dominated by the male partner. Studies also show that married couples find the highest level of satisfaction in egalitarian relationships.