The deep social justifications for marriage no longer exist

The other day I inadvertently clicked on a link in a finance-related article and found myself staring at the following, on a blog cheerfully devoted to divorce news:

The reason the couple who have been married 22 years is divorcing is because she alleges all he does is work (workaholics beware!) and he alleges and she admits that she had an affair with the 23 year old tennis coach of her kids. (In other words, she’s a cougar. She’s 46 and Marc is 47. They got married in their twenties.)

Ok. So what are the stakes? Lisa claims that Marc is worth in excess of $400 million. He says he’s worth less. But he offered her $100 million settlement and she’s basically scoffed it off.

If he is worth $400 million, I don’t think that 25% is enough after a 22 year marriage. Unlike Countess Marie Douglas David who similarly wanted $100 million of her husband’s roughly $300 million fortune, Lisa had a long marriage, 22 years, and three kids with this man. That changes the dynamics significantly. Arguably, Lisa is entitled to half of whatever Marc is worth at the moment. If he’s worth $400 million, she should not walk away with less than $200 million. They can settle it for, say $165. But if I were her, I’d continue to play hardball. One hundred million is not enough after a 22 year marriage with three kids. No fair.

Wow — ugly on so many levels. It really does beg the question: Why should a man get married?

Or to put it another way: What is marriage now — other than a spoils system for unscrupulous women and their divorce lawyers, not to mention the whole Cinderella-fantasy wedding industry?

Marriage presumably evolved as a cultural practice because it combined two advantageous functions:

First, it clarified paternity and stabilized relationships in a way that promoted cooperative child-rearing, and in particular kept us males from wandering off after impregnating females.

Second, it served as a tool for controlling the inheritance of property, the extension of alliances, etc.

Marriage wasn’t something that happened spontaneously. It was a more or less formal agreement, a contract. In modern times, the bride and groom execute an actual paper contract, but in older times the wedding ceremony was the contract, to which the priest and revelers were the witnesses. (Some societies regarded wedding-night sex as the execution or consummation of the contract; in these cases the bloodied sheets of the marital bed effectively served as the “signatures” affirming consent.)

Other tools to enforce this contract and to push couples to marry included the dowry (an incentive for a guy to marry and to stay married because he usually had to return it in case of divorce) and the “delegitimization” of children born outside marriage. In some Western societies now, there are also tax advantages for married vs. merely cohabiting couples.

Clearly, marriage no longer serves these original purposes – at least, not enough to justify the financial risk for a man.

Marriage now does little to clarify actual paternity, since married women in modern societies routinely cheat (and typically have multiple sex partners before marriage), and anyway paternity can be determined unambiguously with a DNA test.

Marriage does not do much to stabilize relationships, because it has become too easy to dissolve; indeed, as the anecdote at the top illustrates, the family law system effectively encourages a woman to end her marriage – and she can do this unilaterally – if her husband earns significantly more than she does, which is normally the case. The divorce rate in the US (about 1m per year) currently is about half the marriage rate. Although it is commonly thought that men can eliminate their risk with a prenuptial contract, family court judges often void such contracts if they deem them insufficiently generous.

Marriage also no longer functions – in modern societies – to direct inheritances and family/business alliances; all that can be done separately with wills and other contracts.

Of course, the average couple probably never deeply rationalizes marriage anyway. They marry (rather than simply cohabit) because their parents want them to, because their friends and siblings are married, because the woman dreams of a fairytale wedding, on a beach at sunrise, with a carpet of rose petals, etc. – above all, because marrying is what the culture still loudly tells young people that they should do. Even gays now want to be able to marry, although – tellingly – the supposed deep justifications for marriage (stabilizing relationships, clarifying paternity and inheritance) apply even less to them than to straight couples.

That marriage nowadays is a largely corrupt and hollow institution is further reflected in marriage statistics. In 2000, about 55% of 25-34 year olds were married, but by 2009, that figure had dropped to 45% – a huge drop in only nine years, and a clear indication that young people are shunning marriage (postponing it too, but certainly many are avoiding it altogether). Men now are often blamed for this; they are said to be increasingly immature, commitment-phobic, etc. That they might have sound reasons to avoid marriage seems to be too disturbing for women to admit.

Abolishing marriage and replacing it with a more fair, rational, contract-based system – for couples who feel that they need a formal arrangement – would not be that hard. Couples could elect to form civil unions, with terms they jointly decide and with minimal constraints imposed by family law. Family law and tax law long ago began adjusting to the fact that many couples cohabit and raise children without being married: Child-support awards are made on the basis of paternity, not marriage per se; and in the US tax code, “head of household” status confers advantages without presuming marriage. The law could simply take this trend all the way, substituting civil unions for marriage where absolutely needed, but otherwise not showing any preference for formal versus informal unions.

In the meantime, marriage still exists, along with its central toxic presumption that a man in the modern world should give a huge proportion of his earned assets to a woman upon divorce, perhaps also with ongoing alimony, simply because he married her, and regardless of how badly she has behaved in the marriage (again, see the anecdote above). To me, it is weird that men have failed to band together and make a major political issue of this. Are we afraid to seem unchivalrous? Or do we fear to speak up lest our spouses do what so many wives already have done, i.e., take away our money and our kids? The only good news here is that men whose lives are not held hostage this way are increasingly refusing to be lured into the marriage trap.


POSTSCRIPT (09/29/12): The NYT runs a very similar piece, though the writer doesn’t fully grasp the problem:

One key, [according to a divorce lawyer,] would be figuring out a formula for predetermining alimony, given the extent to which money becomes a proxy for bitterness during divorce. That could be solved, he said, through something like tables that show what payments each spouse would make based on his or her eventual income in Year 20.