Abolishing marriage law with a smooth transition


There are several reasons for abolishing marriage law and preventing the government from regulating caring or amorous relationships (of which there are many, besides marriage) but to do this such that the transition is smooth for those affected by it is an important consideration. Many feminists, for example, emphasise marriage’s historical role in discriminating against women, other cultures, religions, ethnic minorities, homosexuals, non-dyadic relationships etc. and that, for this reason, the entire institution should be abolished. My presumption here is not that the institution itself needs to be abolished but that the laws surrounding it do. Brake (2012) wrote that marriage law is usually (though not always) sufficient for ‘amatonormativity’ – the “disproportionate focus on marital and amorous love relationships as special sites of value, and the assumption that romantic love is a universal goal” which also discriminates against other forms of caring relationships such as friendships, urban tribes, adult care networks, quirkyalones etc. She proposes ‘minimizing marriage’ in such a way that caring relationships are still rewarded by the government but that people have to ‘opt in’ to marriage’s legal rights instead of obtaining them by default. Chambers (2013), on the other hand, suggests having ‘piecemeal’ regulation where people can ‘opt out’ of certain rights they obtained (by default) through marriage.

Brake rightly flags up “transitional problems”; transition management will determine public receptivity with respect to announced liberalisations. In dealing with these problems, amalgamating both Chambers and Brake’s ideas may be fruitful. Suppose a legislative body passes a law on date X stating that all existing regulation with respect to marriage (now defined purely by individual preferences and private contracts between consenting individuals, if at all) will be annulled for those who get married at or after a certain future date, Y (the difference (Y–X) being the ‘grace period’).

So if the law is passed in 2015, and 2020 is the specified year that people who are married in or after are not subject to any government regulation whatsoever, then there is a ‘grace period’ of 5 years. For those people who married during or before 2015, we could apply Chambers’ proposal of letting them keep their default rights (so as not to impose change which they might not want) but giving them the option of ‘opting out’ of certain rights. For those who get married during the ‘grace period’, Brake’s ‘opting in’ option can be applied so engaged individuals’ lives don’t become complicated and their plans aren’t frustrated by policy changes. In this way, it would be a gradual, eased-in movement toward a purer, unadulterated freedom with respect to personal relationships.