In the UK marriage is on a long term trend of decline. Last year nearly half of all children were born outside of marriage. Clearly this institution is no longer seen as fit for purpose by more and more people. There are many reasons why it is failing. Primarily it is because it is seen as offering nothing but a bureaucratic headache with no significant benefits. There is hardly any stigma attached to people having relationships outside of marriage. In fact the only social taboo these days is to have any word of criticism for any choice of sexual behaviour at all except – for the moment – sex with children.
Of course people have been “marrying” long before the current laws around marriage were introduced, and don’t need the state to help them manage their affairs. But, the state has a role in recognising and setting defaults and standards and in particular the state defines the meaning of the word “marriage” through its laws. So you cannot refer to someone’s partner as their wife or husband without risking misleading people if it is not the legal definition.
The biggest issue I and many others have with “marriage”, as it stands in British law, is that it is only allowed as a 50/50 partnership in all financial matters, and this financial entanglement makes divorces very messy. The processes of divorce have changed a lot over the years, but it is still relatively onerous, taking years and several thousands of pounds in legal fees is normal. At least you no longer have to prove adultery of your partner, but you still have to ask a judge to allow a divorce proving fault of your spouse. This is akin to accusing your spouse of a crime. Many people have been speaking about the need for no fault divorces and that is one long overdue step that would help encourage marriage become more viable for couples to define their relationship.
The law needs an overhaul in a number of ways:
Marriages should be treated as other contracts for partnerships, not as some lifelong vow which the breaking of is some kind of crime. This is a peculiarly Christian notion and it is why divorce was not allowed. If Christians want this kind of marriage then they are welcome to it, but why should it be imposed on everyone else. Other forms should be possible.
As a partnership agreement, all kinds of financial arrangements and obligations could be allowed, with a default being only that without explicit waiving of the right a woman has the right to stay at home and look after their children with the husband paying for the maintenance of them according to what he spends on his own maintenance. As with all partnership agreements, if the partners wish to stop being partners then they can make whatever settlement can be agreed, to end the partnership. If only one party wants the partnership to end, then there should be a simple process by which this is done. In Islam, this default is to do with a “mahr”. As part of the marriage agreement some asset is given by the husband to the wife. This functions as bail money. If he leaves the partnership against her wishes, she keeps the money. If she leaves the partnership against his wishes, then this money must be returned if possible. In British law this payment could be introduced in the same way as a “guarantee payment”. It does not solve everything, some property is jointly owned, including, in particular, the children.
Legal recognition of this kind of marriage would change the meaning of “marriage” in UK law and allow full enforcement of a much wider range of possible contractual rights of marriage. It would also in particular allow polygamous marriages which though it may not suit many people can help women who would otherwise be single.
In British law there are essentially two kinds of recognised relationships. Life long monogamy which cannot be dissolved except with acrimony and alimony, or the presumed consent of anyone together with anyone over the rather arbitrary age of 16. It is high time that Britain took the middle way of Islam, with its flexible partnership of marrige only requiring proof of consent and allowing no fault divorces with simple settlements agreed up front.