MARRIAGE À LA MODE.

“Our marriage service is too refined. It is calculated only for the best kind of marriage; whereas, we should have a form for matches of convenience, of which there are many.” (from Boswell's Life of Johnson, 10 November 1769.)

1. Implicitude.

Being in a relation of marriage consists (as does any kind of relation, formal or informal, between two people) of some sort of agreement which says what each of the two parties have agreed to do for (or to) each other. But the full terms of marriage agreements are never explicitly stated. For example, as I understand it, the present civil marriage ceremony in England (the performance of which is sufficient for two people to be legally in a state of marriage) consists of both parties saying out loud the text: "I, Person A, take thee, Person B, to be my wedded wife/husband". At no point in the proceedings is it said what this being a wife/husband entails, i.e. what consequent behaviours are expected from the parties involved. I wonder if the main reason for this absence of an explicit statement of the marriage terms is that, historically, those terms have been so shockingly unfavourable to women that men have felt too embarrassed to openly state them.

The lack of explicitness of the terms of marriage is so baffling that I'm surprised it isn't something that is commented on more often. The lack is baffling in the same way it would be if there were some made-up imaginary relationship. So, imagine that Jack writes a contract saying "I, Mary, take thee, Jack, to be my moogle" and then gets Mary to sign it. Afterwards Mary might ask: "hey Jack, what does me being your moogle entail exactly?" and he would maintain a stony silence! (In which case the agreement might as well have just said: "I, Mary, agree to this agreement with Jack" and nothing else.) Mary should have refused to sign, saying: "I don't play any games I don't know the rules of".

Or imagine Jack said: “hey Mary do you want to buy this thing for £20” but he refused to show her the thing or to tell her anything about it. But he still persisted in asking her "well, do you want to buy it?" and insisted on an answer.

2. Law.

Given marriage's rather shady nature I don't understand how it can be accepted as a legal contract. Of course being married does have certain rather particular legal consequences largely regarding property and money. But these are not a complete account of the consequences of the act of getting married. No mention is made of anything more substantial in terms of financial and material support. So imagine that Jack and Mary get married. And Jack owns a big house while Mary is renting a small apartment. And what if Jack says to Mary that she can move into his place and he will charge her rent. On what legal basis could Mary object? (Actually I think I read somewhere once that members of a married couple are legally obliged to permit their spouse to live in the marital home rent free. But I'm not entirely sure.) And what if Mary says she will move in with Jack but she won't do any household tasks unless Jack pays her the going rate. Can either one of them use the fact that they are married to dispute the other's demands? I doubt if they can but even if they could it wouldn't be by virtue of any written-down law. I think it's something to do with "common law" whatever that is. That's how it stands up in court. But I don't see how that would work either. Common law is not written. To appeal to it would be like appealing to custom or tradition. But customs change. In the last 40 years it has become more common for wives to work. Has common law caught up with this fact? Can a husband expect (legally) to be supported by his wife as much as she can expect to be supported by him? And to what extent can she expect support from him? What material standard of living can she expect from him?

Certainly in the law there is no mention made of sexual relations. This means there would be nothing to stop two individuals who were not interested in each other sexually to become married. There is no law that enforces what used to be called "conjugal rights".

Also there is an issue of the scope of the agreement. To the extent that it does have content the terms of the agreement (in the religious service anyway) are stated as "unto death". Again I'm not sure that this can be legal. Surely for an agreement to be legal it can't be binding in such a terminal way. There have to be some explicitly stated conditions under which the agreement terminates. Imagine an employer gave their employee a contract of employment and it included that the employee was not able to quit the job ever. That would not be legal.

Sometimes I also get the impression that getting married to someone meant, somehow, putting yourself into a legal and maybe even moral vacuum. As if you are agreeing that between the two of you no laws or rules apply. You have to fight it out.

3. Customisation and Modularisation.

The lack of openness in the statement of the terms is one reason why those terms are difficult to modify and customise to the individual requirements of the parties concerned. You can't make amendments to something if nobody is openly admitting its existence in the first place. But there is plenty of scope for modifying the terms.

Whatever the content of the relationship of marriage is now (and whatever its status as implicit or not), historically that content has been a number of different things all collected into one. But it seems unrealistic to think that you can get all the things you want (and the way you want them) from just one person. Sex, love, domestic things done (cleaning, repairs), financial support, childcare, cooking, a shoulder to cry on. The forced aggregation of all these sorts of things makes marriage seem like some sort of cult albeit one with only two members. It involves pooling (ie giving up) all your possessions. But you might not want to enter into an agreement with someone that is so overarching. That's the thing about cults in general. They have a few undeniably attractive qualities. The sense of belonging and the fabulous costumes. But then you find that the cult insists that you partake of every single other thing that it says too. That doesn't seem like a price worth paying.

You might want only some of the components that traditionally constitute marriage and not the others. The two of you might need the intimacy but be sufficiently financially secure for you not to need any of your money affairs being interfered with. Or you might want all the components but not from the same person. For example Mary might really like Jack as company and for doing sex with. And yet not think that he's mature and sensible enough to be the father of her children. So she might find somebody else to perform that function while maintaining the intimate relations she has with Jack. Or Jack might like doing sex with Mary but be totally unable to bear her constant chatter about Gothic architecture. So he will get his intelligent conversation requirements satisfied elsewhere.

4. Separation.

Imagine we sorted and separated the components of the marriage relationship, ie the things a couple do with each other that constitutes them being married. Imagine we separated these things into two groups. These groups would be, first, affectionate relations and, second, practical relations. The first group of things, affectionate relations, would be activities which arise immediately and obviously from the fact of the couple having an affection and liking of each other. This would (of course) include doing sex. But also sitting and talking (every day about what kind of day you had that day) or doing some other sort of thing whereby you two amuse each other. The second group of things would be practical things like allocation of household maintenance tasks like washing-up and shopping and childcare.

So an obvious sort of customisation would be a separation of these two groups. You could say you should separate these two groups for the same reason that you shouldn't mix business with pleasure. So: don't have a relation of affection with someone with whom you also have a relation which depends on them doing actual material things for you. The point being that if you have a relationship of affection with someone then entering into a practical relation with them might spoil that. For example if and when you fail to to something practical that you said you would. That might spoil whatever affectionate relationship you had. This is all rather like the advice which says don't lend money to your friends.

On the other hand maybe a practical relationship works better between two people who also have a relationship of affection as the affection will reduce the possibility of conflict. The two of you will get along and work together better.

In fact somebody might say: "I love you so much I'll do anything for you" or "I do this out of love for you". So the affectionate part of the relationship leads to a very contentful practical one. They'll happily be their loved-one's servant. But about that sort of thing I find myself thinking: that's not love really, it's just servitude. It's a very old-fashioned use of the word 'love'. Where the servant loves their master. But it is certainly true that if you are in a relation of mutual liking with someone even if it is friendship and not romantic. Then it would seem wrong to not help them materially if they should need that help. The sort of help you wouldn't give somebody you didn't like. Somehow mutual liking implies material obligations but I don't know exactly how it does this.

Another way in which the affectionate and practical relate to each other is that you might love someone because they are of practical use to you. So for example, Mary loves Jack because he is so dependable and reliable with doing things. I'm not saying she has made a calculated utilitarian judgement about his usefulness and so decided to be with him on that basis. There is a genuine love there. In which case marriage for money does not always have to be loveless. The loved-one's money may cause a real love for the loved one in the heart of the lover. Where that love is not just a love of the money.

5. Limits.

There is a big question that arises here which is: what are the limits of customisation? What degree of customisation of a relationship renders it no longer a marriage by anyone's definition of that term? Could you have marriage which was just affection or just practical relations? In the past a man's relation to his wife could be purely practical. She was just a housekeeper and a raiser of children. Love didn't really come into it. Her status was slightly higher than that of a servant. I don't think it would make sense in the present age to have a marriage which was just practical in that way. It would literally be like hiring a domestic servant.

The other side is: could you have marriage which was just affection? I don't think you could. I mean affection is probably more essential than most of the practical things that constitute marriage. But you can't say that you think marriage is essentially affection and nothing else. Because a marriage is essentially a voluntary undertaking and liking someone isn't something you decide to do. (The bit of the vows where the couple promise to love each other is therefore a nonsense.) The most you can say is that the practical relationships are essential but only in so far as they are maintained by affection. In which case a formal marriage contract is irrelevant. Like Joni Mitchell said: "we don't need no piece of paper from the City Hall, keeping us tied and true".

6. Exclusivity.

Some but not all components of a marriage are exclusive. So if Mary's relationship with Jack includes that she mops the floors of the house they share. That doesn't preclude her mopping other people's floors in her spare time if she wants to. It wouldn't be a problem if she did that. On the other hand consider a different component the one which says that Jack pays for the upkeep of any children they have. Then the assumption would be that he doesn't casually pay for the upkeep of other children that aren't theirs elsewhere (whether they are his or not). Similarly if Mary agrees to give birth to Jack's children the assumption is she won't do the same for other men.

Affection is one of the things that is made exclusive. If Jack is married to Mary it would be a problem if one day he said that he is being affectionate towards somebody else. But making affection exclusive seems like an odd thing to do because feeling affection for someone isn't something that we decide to do.

If you could customise marriage then you could decide which components you wanted to be exclusive and which ones you wanted to leave open. So Mary and Jack could say that affection isn't exclusive but dining is. In this scenario if Mary was doing sex with another man Jack wouldn't mind but if he found out she had dinner with somebody else he would be annoyed.

It is probably the peculiar intensity of the pleasure currently associated activities relating to the biological function of reproduction that makes doing sex an exclusive relation. But if that sort of pleasure was instead associated with activities relating to the biological function of nutrition then a sexual act might be things such as a couple spooning yogurt and honey into each other's mouths. (And such feeding activity performed outside marriage would be grounds for divorce.) Acts between two people that relate to the biology of reproduction would remain pleasurable but that pleasure would be as casual and inconsequential as the pleasure of eating yogurt and honey is now.

7. Cash nexus.

In recent times the tendency is for practical relations to be excluded from marriage. (For example couples keep their own incomes and/or domestic jobs are not exclusively done by women.) I'm not sure if this has got anything to do with people wanting the marriage relation to be more about affection. It's more to do with the fact that practical relations in general have stopped being personal ones and are instead impersonal and financial. And you can't have relations of the latter sort as part of a marriage. So in the olden days a man would get married to a woman because he needed someone to wash his clothes. And she would do that because she was his wife. But now a man would more likely pay for someone to do his washing. (Or more likely pay for something, a washing machine.) A man paying a woman to wash for him could not be part of a marriage. The general trend is away from what you might call 'obligatory' relations to ones that are financial and contractual ones based on payment of money.

This is why the following imaginary situation seems odd to us now. The situation is where you work at Jack's factory making widgets. But you don't get paid wages. It's more like you're part of Jack's family and you make widgets because you are part of his family. Other members of his family do things for you in return like feed you, house you and clothe you. In none of this does money change hands. And also when you became Jack's employee that was a bit like the act of getting married. So you can't just go and work for someone else at will. You working for Jack is a more serious commitment than that.

What I'm describing here is basically some sort of feudalism. Which was replaced by a system where the relations were just financial and looser. Similarly the remaining practical elements of marriage are like a vestige of feudalism. So if Mary and Jack are married then Mary does practical tasks such as cleaning etc and in exchange Jack lets her live in his house and keep it in good condition. If Jack finds someone who is a better cleaner he wouldn't think to tell Mary to leave. The way he would do if Mary wasn't his wife but just somebody he had hired to do cleaning at his house.

Needless to say the affectionate part of a marriage is not subject to a conversion to the new sorts of relation. You can't buy love.

8. Coda.

Another anomolous thing about the marriage contract is that (unlike with other sorts of contract) its violation is not punished (any more). So let's say Jack and Mary are married and have agreed to the marriage contract and this includes them agreeing to not casually do sex with anybody else. But then what if Jack starts doing just that. The best that Mary can get out of this is for the contract to be dissolved and cancelled, ie a divorce. But this is not usual for contracts is it? Imagine instead of a marriage contract they had a car sale contract. So Mary paid Jack $1,000 for a car to be delivered and then Jack doesn't deliver. So she goes to the Law. The first thing the Law will do won't be to just simply get Mary her $1,000 back. The law will either enforce the contract ie insist that Jack delivers a car. Or, if he still fails to do so, Mary will get her $1,000 back and also be able to sue for breach of contract as well. Which is right because if breach of contract were only punished by restitution then there's no deterrent is there? If Jack stole some money from somebody and the only thing the Law does is to tell him to give the money back that doesn't sound quite right. Jack would have no motive from desisting from future stealing because the worst that will happen is that he will have to return what he has stolen. At least some of the time his thefts will go undetected. So on the whole the life of thieving would be very attractive. (By the way I'm not arguing for punishment and retributive (as opposed to restitutive) justice here. I'm just saying that in a system that is otherwise punishment based it seems inconsistent that breach of marriage contract is treated differently.)

In fact, to be perfectly correct, enforcement of the contract should be the only option and divorce should never be allowed. Certainly 'no-fault' divorce should never be allowed. Because the marriage contract is for life. You've said you agree to it so why should you have the option to change your mind. If you wanted the option to change your mind (because you think you might do that) then you should have said that in the first place. You should have had a contract which explicitly says that you can change your mind and on what basis. Or have a fixed term marriage contract. Or change the marriage vows from "til death do us part" to "until someone nicer comes along".

Of course it’s not as simple as I have described above. For example things cut across. Affection (of the grossest sort) yields practical obligations. As witnessed by the song lyric: “you’re gorgeous I’d do anything for you”.

What if marriage was just a transaction. I mean what if between males and females there was no affection and no lust either. But both parties want to have children. (And you can’t have a child that isn’t also somebody else’s child.) So then it’s a business deal. Where each party will want to get the most out of the deal.

[original version of this post from 6 August 2014]