Civil partnerships for all doesn’t alter the fact that marriage is an archaic contract in need of fundamental reform, writes Sonia Sodha.
Imagine the biggest financial contract you'll enter into. What comes to mind? Your mortgage? Student debt? Think again. For many of us, the heftiest, not to mention the most open-ended, financial commitment we will make is marriage. The marriage contract isn't quite ``what's mine is yours'', but almost.
Once you've married someone, you have legal financial obligations to them even after it's over and even if there are no children involved. Yet the vast majority of us don't take even cursory legal advice before saying ``I do''.
Forgive me if that sounds cynical. But I'm in my mid-30s and having oohed and aahed at countless dresses, and overindulged at dozens of wedding breakfasts, the novelty of nuptial romance has worn off. As someone who's worked for 15 years and is on the property ladder, I want to know: is getting married a sensible thing to do?
The younger me would have loved the surprise of someone dropping down on one knee. But these days I think that would be pretty silly without a practical conversation - if not beforehand, then soon after - about what's right for us as a couple, including what might happen if we split.
No-one wants to think it'll be them, but four in 10 British marriages end in divorce. If marriage is a contract people are carried into by love, it's one often left in a bitter cloud of acrimony. That practical conversation is, however, made harder by the vagueness of the contract. Sure, marriage is about commitment, but to what?
Judges in England and Wales have a huge amount of discretion, supposed to preserve fairness in complicated situations. But this has led to inconsistencies so big that lawyers will file for divorce in certain post codes where judges are more favourable.
And because of the eye-watering costs that can rapidly erode assets, a shrinking number of cases ever make it before a judge; most people settle out of court with only a vague idea of what their legal obligations to the other might be.
It's not just the uncertainty that makes me queasy. All good feminists are schooled in the idea that marriage is a patriarchal institution. It's not the religious origins that bother me, the ``love, honour and obey'' long dropped from modern wedding vows. It comes back to contractual origins of marriage, based on a woman's legal status as her husband's chattel, not even allowed to own property until 1870.
Today, divorce law is very much based on the 1960s ideal of a male breadwinner and stay-at-home mother. But most mothers work, people are marrying later, growing numbers of couples will never have children and there are more second marriages.
That said, the feminist revolution is very much a work in progress. It's often one partner's career that takes the hit after children and it's usually women who go back to work part time and put family above promotion. This creates a tension for feminists: should divorce law reflect the unequal reality of society today or act as a catalyst for further equality in the workplace and the home?
Protection for lower-earning partners is more generous in England and Wales than many other countries. The starting point for assessing their financial requirements as individuals - separate from provision for children - is what it would take to maintain their existing lifestyle. Prenups may be taken into account, but aren't legally binding, which can make them expensive to uphold.
People whose careers have taken a hit in order to be the primary carer to children deserve compensation when a marriage ends, but I find the idea of maintaining your lower-earning ex's lifestyle to the standard they've come to expect, if only for a few years, a bit uncomfortable. These settlements can also trap parents in existing patterns of working and caring.
In families with a female breadwinner and stay-at-home dad, there are cases where the bulk of custody has been awarded to the father, while the mother has to move out and carry on working in order to afford maintenance. Perhaps this is just a sign of a supposedly gender-neutral system working as it should. But these counterintuitive examples should prompt us to question whether - regardless of the gender of the main breadwinner - it would be better to share both caring and earning more fairly if it's in the children's best interests.
The fact is, marriage in England and Wales is only available on a one-size-fits-all basis that you have to sign up to if you want benefits such as the guaranteed authority to act as next of kin.
Extending civil partnerships to heterosexual couples, as was confirmed last week, won't change that. The introduction of civil partnerships was simply about establishing gay marriage by another name, not about modernising the archaic institution of marriage from which they're virtually indistinguishable.
Some countries offer more choice: in France, couples can pick between four types of marriage contract - from pooling everything they own to keeping their financial affairs entirely separate - and these are legally binding.
So long as this incorporates compensation for whoever had been the primary carer in the event of divorce - and there was protection for victims of domestic abuse and financial coercion - this model appeals to me.
Making couples actively choose a marriage contract also has the advantage of prompting some of those important, if awkward, premarital conversations. Maybe it wouldn't be such a bad thing if, when someone got down on one knee, the next thing uttered wasn't ``yes'' or ``no'', but ``what type of proposal are you making me?'' - Guardian News
- Sonia Sodha is an Observer columnist
