The case for privatizing marriage


pensivebride The UK Supreme Court's ruling on prenuptial agreements should get us thinking about the entire nature of the marriage contract – and whether the state should be involved in marriage at all.

By a decisive majority of 8-1, the Court dismissed an appeal brought by Nicolas Granatino, the former husband of German heiress Katrin Radmacher, seeking a much bigger share of her multi-million-pound fortune. This prenuptial agreement was fair, ruled the Court. And that suggests in turn that prenuptial agreements now have some weight in English law, and must be considered – even though they will be considered on a case-by-case basis.

So here's the deal. We have laws about contracts. You can't just sign a contract and expect it to stick: it has to be regarded as fair. Contracts have to be voluntary, so if the courts reckon that one party has been more or less forced into one, or duped into one, it is voided. That seems quite reasonable to me.

Marriage, though, is a strange sort of contract. It implies all kinds of commitments – 'all my worldly goods I thee endow' sort of stuff – plus implications for state benefits, tax and suchlike. As such it conflicts with prenups, and arguably overrides them. Or, after the Court's ruling, does it?

For my part, I can't see what marriage has to do with the state. If people want to enter into a life contract, and that contract is reckoned to be fair – not signed under duress, not unreasonable to the weaker party, and suchlike – then they should be able to. The only role of the state is to enforce the agreement, as it would with any reasonable agreement.

It may be that the state could insist on certain minimum criteria in order for people to qualify for certain benefits or tax allowances. I have no problem with that. Being a bit of a statist, I wouldn't even mind if the government drew up a checklist of agreements that people could use as a template for their life partnership, accepting or rejecting each checkbox as they together deemed fit. The same conditions would be available to same-sex and different-sex couples alike. If you wanted to get married in a religious ceremony, though, your Church might require you checked a certain minimum set of agreements.

So that's it. The state might insist on certain contractual conditions, your religion might insist on others. Apart from that, your marriage agreement should be up to you. You wouldn't need prenups any more because your marriage contract would be literally that – a binding contract. Isn't that fair?