Marriage: License or Contract?

The current marriage debate is rife with falsehoods designed to steer public policy into the arms of the statists.

Please, allow me to start with an easy falsehood that the proponents of same sex marriage, and their allies, have been spreading: Same Sex Marriage is about Marriage Equality. This is easily revealed false because the proponents constantly define marriage equality as something to do with couples, exclusively unrelated couples, never anything other than unrelated couples, and absent are couples that could not get a marriage license even if they were opposite sexes. The world of partnering in America, and the rest of the world, is much wider than unrelated couples.

Now, for this topic, the marriage license vs. the marriage contract. Back before 1215 when the Catholic Church created the banns of marriage tradition, marriages resembled contracts between families. The banns formalized that a bit, requiring Catholic couples to declare their intent to union for a few weeks, lest anybody in the community have an objection.

Still, the government was not involved.

Even in 17th century America, the Colonies were slow to adopt marriage licensing and “common law marriage” ruled the day.

Modern common law marriage is not exactly a “contract” either. It does bear some resemblance to a contract. The parties involved enter it willingly, sort of. In States that have Common Law Marriage, the State decides if a couple is married, frequently after one of them has gone to the great beyond and there is a question about who owns their property. So, we really do not have willing parties involved in common law marriage, we have States injecting themselves into relationships.

However, true enough it is possible to be in other contacts unknowingly or unwillingly. Know it or not, every time you purchase anything, even if words are not spoken, you and they created a verbal contract.

Many people have heard the colloquial term “palimony,” where an unmarried couple ends up in a court imposed spousal support situation, and presume it to be the law across the land. If you are one who still believes that it is in play in California, it may surprise you that California abolished common law marriage in 1896 and Michelle Triola was informed of this when she lost her quest for a lifetime of support from ex-boyfriend Lee Marvin. The mainstream media did not do such a hot job of getting the word out on that outcome.

What of licensed marriage then? Writers write daily about these situations, and they keep calling them “contracts.” What serious person can call a licensed marriage a contract when it bears not even the most superficial facade of a contract? Even more importantly, why would any self-respecting libertarian call it that? We libertarians are supposed to be pretty good at identifying things that are disguised by the collectivists with a thin candy shell.

For starters, all licensed marriages are licenses between individuals and the State. Only two individuals allowed per license! Are the individuals allowed to set any terms of the license? Not on your life! Show me one marriage license in all of America that has blank space for terms, stipulations, or any other feature of a written contract.

Can anybody have simultaneous marriage licenses with other people? No, that is against the law everywhere in the USA.

Can the parties named on the marriage license stipulate an “open marriage” where either, or both parties, can have intimate relations with people not named on the license? No, not anywhere in the USA.

In community property States, can the parties contract to “fence off” property from one another, and have a court respect/enforce that? No.

What about property division? Are prenuptial agreements the final word, or does the government decide? In reality, the government decides and tosses out prenups on a regular basis in favor of State law on property division.

What if the parties involved get married in a no-alimony State, like Tennessee, and get divorced in an alimony State, like New York. Is the marriage ‘contract’ enforced under the Tennessee rules, or New York rules? New York rules, of course, especially if the couple has lived there for a while and one party wants to be divorced there, while the other wants the divorce heard in Tennessee.

One of the basics of contracts is that you cannot make one that violates the law. Prostitutes (illegal ones anyway) cannot obligate you by contract into a paid sexual transaction, and they cannot make a contract that says “if you are a cop you cannot arrest me.” So what of a marriage contract? Just try to think of anything in a marriage that one could add or subtract that does not violate State marriage law. In Tennessee, can you agree on child custody and have a court enforce that agreement? No, because the State law favors the mother as long as she is not proven “unfit.” So any agreement giving father gets custody can be thrown out, no matter what the parties agreed to.

Without a license there are more possibilities, but there are pitfalls too. In most States, I presume, multiple people can purchase one piece of property and as long as they stay away from marriage licenses, their wills and powers of attorney sway courts in the general direction of their desires over their property.

One of the women before the US Supreme Court yesterday today complained that she married another woman in Canada and, when her wife died, she got whacked with a large tax bill.

The DOMA challenge was brought by Edie Windsor, an 83-year-old woman from New York who married Thea Clara Spyer in 2007. After Spyer's death in 2009, Windsor was denied an exemption of federal estate taxes.

In other words, she got screwed the same way any other unlicensed partner gets screwed by the tax man in the USA. The same way a blood relative of the deceased gets the shaft, but the argument was not to include anybody into marriage licensing or the special tax rules associated with licensed marriage. Oh no, it was only to include unrelated same sex partners into marriage licensing. Neither was there any call to tax everybody equally. No, the call was to give special treatment to one group that is not available to everybody else. Or more accurately, to add special privilege to one small group while denying it to others.

I am trying very hard, seriously, to think of anything a married couple can agree to that a divorce court cannot undo. If a group (any two or more will do) contracts for anything, one cannot legally go into the bank account of another and spend their money. Not so in much of the USA when a marriage license is involved. One might say you are combining assets and giving permission with a marriage license to do this, but are you ever allowed to withhold that permission? Not everywhere.

In real estate, there are special rules of course, but those apply to the unlicensed spooners as well as the licensed. All parties responsible for a mortgage must sign that they agree. Deeds must have all owners listed, even if the owners are “entities” like partnerships, which have individual partners listed elsewhere. In a community property State, can one person in a licensed marriage buy property alone and keep it after a divorce? No. Can unlicensed people do that in non-common law States? Of course.

Well, perhaps I am missing something here. I don’t mean the candy-coating of legal wording calling licensed marriage a “contract,” compact, or any of those other linguistic smokescreens. If there are any domestic lawyers out there who can point out how, precisely, any legal USA marriage is a contract between two people and enforced by the State like any other, let me know? Both I and the English language will thank you.

For the rest of you people, if you seek marriage equality, ditch the license and lobby for contracts.

Ⓐ Steve Ⓐ