Marriage

The Purpose of Marriage

To understand the nature and purpose of marriage, the first and primordial step is to recognize its procreative purpose. This purpose is nowadays often downplayed and discarded by those who see it as an institution that should serve the interests of the two “partners”. But in actual fact, the purpose of marriage is to create the stable environment that is necessary for the successful rearing of children. It is therefore the children that stand in the focus of a genuine family.

It is of course true that children can be raised also in a less than ideal environment, e.g. in an orphanage, or (as a result of the premature death of a parent or a family break-up) by one parent alone or by step-parents. But that obviously does not mean that all possible scenarios are equally good, or that any of them is preferable to the classical family (i.e., a married couple and their offspring):

• Anthropological research has amply demonstrated that it is generally preferable for a child to be raised and educated by its natural parents rather than by other educators. It is self-evident that natural parents will usually feel greater emotional attachment and responsibility for a child than a hired educator, who is more likely to entertain a merely professional relationship.

• It equally has been amply demonstrated that a child needs both male and female role models. An environment where a child is confronted with educators of (only) one sex may later on lead to difficulties in developing a healthy relationship to persons of the other sex.

• In contemporary society most children remain dependent on their parents at least until the age of 16, which implies that the parents should stay together at least until the time where the child has reached that age.

• Rearing children requires time and personal commitment, which is why it is usually not possible for both parents to pursue full-time professional activities and, at the same time, manage a household with one or more children. For this reason, it is typically necessary for one of the parents (usually the mother) to have no or only a part-time job, which implies that this parent needs to be economically sustained by the other parent.

It follows that marriage is first and foremost an institution that exists in the interest of children, and, to some degree, in the interest of mothers who raise children. Marriage only makes sense if it is concluded between a man and a woman who want to have children, and if it provides the stability (in particular for mothers) that is necessary to raise children. And this is why, in most jurisdictions, a marriage is considered invalid if one of the partners or both deliberately exclude the possibility of having children.

By contrast, there is no necessity for two persons to enter into such a relationship, nor for such relationship to be legally recognized or promoted, where procreation is by nature impossible.

At the same time, it should also be noted that marriage is not just one of many options for two persons who want to found a family, but it is the only option that is morally acceptable. The carnal act expresses the wish to be father and mother of common children, which by necessity implies a lifetime commitment. If that is not the intention of the two persons involved, then their act is in itself untruthful. It is thus the respect both for the other person as a partner of equal worth and dignity, as well as for the common children, that makes extra-marital sexual relations morally unacceptable.

Rather than by giving any additional social and fiscal benefits to married couples (and withholding them from non-married ones), today’s crisis of family and marriage can only be resolved by promoting a renewed and deepened understanding of both. This understanding must emphasize that families have an important task in society in which they are not replaceable: that of raising the generation of tomorrow. To fulfil that task, it is necessary that marriages are between persons of different sex, open to procreation, and durable.

Marriage in International Law

The Fragmentation of the Legal Order

In the light of what has been said in the preceding sections, it seems useful to open a small parenthesis and to examine the wider implications of the increasing legal uncertainty around the terms “family” and “marriage”.

There was a time, and it is not even very long ago, where everybody knew what “marriage” and “family” meant. Even at times where there was a considerable diversity of legislations between different European countries, the concept of marriage was so uniformly understood and applied that this probably was the area in law where uniformity of regulation was strongest. There was thus in principle no problem for one jurisdiction to legally recognize the marriage contracted in another.

This situation has been completely reversed. While organisations such as the UN, the WTO, or the EU strive to harmonize each and every legislative domain at an international or at least regional level, the development in the area of marriage and family law goes in the diametrically opposite direction: there is increasing fragmentation and, as a result of this, increasing incompatibility between the legal concepts used by different countries.

This development is most strongly felt by those living in a different country than their own: if, for example, a man from country A and a woman from country B marry in country C and then settle in country D, the question arises which law will be applicable to the marriage (and eventual divorce) of this couple. If all countries had the same laws, there would be no problems. But since countries have (with varying degrees of “liberalism”) begun legislating for divorce, this uniformity has ceased to exist. More recently, the situation has been further exacerbated as a consequence of various types of “registered partnerships” (between persons of the same and/or of different sex, with various degrees of commitment and revocability)[1] and of “same-sex marriages” in various countries.[2] Both at EU and at international level there is today increasing uncertainty how to interpret the term “marriage” when it appears in an international document, and there have even been some frivolous (albeit so far unsuccessful) attempts to use international or EU law to force the legal recognition of same-sex “marriages” on countries that reject this innovation.

Strangely, it is the innovators who, nowadays, deplore the legal fragmentation in matters pertaining to marriage and family, and who seek harmonisation (i.e. that all countries should be forced to introduce their innovations) or at least mutual recognition of laws as a possible solution. But it was precisely themselves who, by recklessly introducing liberal divorce rules, “registered partnerships”, and “same-sex marriage”, have undermined the convergence of legislation that had existed beforehand.

From the perspective of Natural Law, it would certainly be desirable that there be less fragmentation between different jurisdictions: the true concept of marriage is of universal validity. However, a greater uniformity of laws should is not an end in itself: it is more important that those countries who have a legislation that still is vaguely similar to the principles of Natural Law remain able to maintain it, rather than accepting grossly aberrant legislative standards as a common denominator.

For this reason, the long-term objective must be to establish the precepts of Natural Law (i.e. the fact that marriage is between a man and a woman, and that it may not be divorced) as the international legal standard, to the effect that a state allowing for divorce and/or same-sex marriage would be seen as violating international obligations. In the short and medium term, however, the lack of competence of international bodies (notably the UN and the EU) to legislate on marriage and the family is a convenient argument for those seeking to defend society against the imposition, by the EU and other international bodies, of laws that would undermine the family.

In the absence of any internationally accepted standard (or indeed: because the shared understanding on those matters seems to be disappearing…) matters pertaining to marriage and family are regulated by international private law, i.e. by a set of rules that do not regulate the substance of the matter, but merely determine the competence of countries to apply their laws on a given situation if that situation has sufficiently close links to that country. In the case of marriage and family, it is the citizenship of either of the spouses, or the domicile, or the place where marriage has been entered into, that may be considered to establish such a link. However, although there are some international agreements on the matter, it should be noted that international private law generally is a matter of autonomous competence for each country, i.e. that each country may decide for itself to which situations it chooses apply its laws. With certain countries inventing different types of registered partnerships, legislating for express divorce or same-sex marriage, or even legally recognizing polygamous partnerships, the situation is becoming more and more chaotic.

International Law: Marriage is between a Man and a Woman

Considering the practical importance of family law, there is remarkably little regulation on international level. The only thing that can be said with certainty is that the right to marry and to found a family is internationally recognized as a human right (notably in Art. 16 of the UDHR, in Art. 23 of the ICCPR, and in Art. 12 of the ECMR), and that therefore all countries are obliged to foresee and recognize the institution of marriage and the family.

It is generally held that this international obligation extends only to marriage between a man and a woman. Attempts to create an international obligation for countries to provide for, or accept, “same-sex marriage” or similar, have been utterly unsuccessful both at UN and European level.

In the case of Joslin v. New Zealand, the UN Human Rights Committee held with regard to Art 23 of the ICCPR that:

“Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term “men and women”, rather than “every human being”, “everyone” and “all persons”. Use of the term “men and women”, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other.”

In the case of Schalk and Kopf v. Austria, a case decided by the ECtHR, two gay men filed a complaint in which they argued that Austria had violated its human rights obligations, notably Article 12 (right to marriage) and Articles 8 and 14 (discrimination with regard to right to privacy) by not legislating for same-sex marriage. The Court rejected this claim, finding that:

“The Court notes that Article 12 grants the right to marry to “men and women”. The French version provides « l’homme et la femme ont le droit de se marier ». Furthermore, Article 12 grants the right to found a family. The applicants argued that the wording did not necessarily imply that a man could only marry a woman and vice versa. The Court observes that, looked at in isolation, the wording of Article 12 might be interpreted so as not to exclude the marriage between two men or two women. However, in contrast, all other substantive Articles of the Convention grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment. The choice of wording in Article 12 must thus be regarded as deliberate. Moreover, regard must be had to the historical context in which the Convention was adopted. In the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex.”

With regard to Articles 8 and 14 the Court pointed out that:

“Insofar as the applicants appear to contend that, if not included in Article 12, the right to marry might be derived from Article 14 taken in conjunction with Article 8, the Court is unable to share their view. It reiterates that the Convention is to be read as a whole and its Articles should therefore be construed in harmony with one another. Having regard to the conclusion reached above, namely that Article 12 does not impose an obligation on Contracting States to grant same-sex couples access to marriage, Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation either.”

Marriage and Family Deserve Specific Recognition and Support

It is not the purpose of this paper to set out a specific program regarding the social or fiscal benefits families should enjoy. There is a great variety of measures that a State can take in order to promote the family and to provide it with a stable basis, and given the great differences of situations existing in different countries, there clearly is no one-size-fits-all solution that is best always and everywhere.

However, there is a recurring theme. Families (i.e. a man and a woman living in a stable marriage and raising children) make an important contribution to the common good that others (such as singles, unmarried couples, gay or lesbian couples, single parents …) do not make: they not only provide social security for both partners on the basis of a binding commitment, but they also rear the children that will work to sustain the currently active situation when it reaches retirement age. Indeed, all those who do not themselves raise children benefit from the fact that others are doing so.

There is thus an inherent moral hazard in our modern welfare systems. A couple that has no children can earn two incomes instead of one or one-and-a-half, and will usually also accumulate higher pension entitlements, but it does not have to face the expenditure (in terms of need for more living space, food, clothing, schooling costs, etc.) that are associated with the raising of a family.

Because it makes a specific and unique contribution to the common good, marriage is a role model that deserves special protection and support. By contrast, other types of relationships (unmarried cohabitation, “consecutive monogamy”, homosexual relationships, etc.), if at all tolerated, should in no case be treated at a par:

• Unmarried couples often live a life that is similar to that of married couples, and they often raise children. However, if the unmarried partners do not decide to marry it is because they do not want to make a full and life-long commitment between each other. They are therefore less stable than marriages, and in situations of crisis they break up more easily. While mutual support in situations of crisis is precisely one of the purposes of marriage, the intrinsic – and in a certain sense deliberate – instability of unmarried couples means that this purpose is not fulfilled. Instead, the risk of a break-up is, to a large extent, put on the shoulders of society at large (although, as a result of liberalized divorce laws, the difference admittedly is diminishing…).

• Single persons usually do not raise children. Where they do, it usually is the result of a family break-up. While, of course, everybody who raises and educates children contributes to the common good and deserves support, it nevertheless is clear that the upbringing of children by a single parent is not an ideal situation and should not be incentivized. It follows that social welfare systems should not be crafted in a way that makes it attractive to avoid the commitment and responsibility of marriage.

• Same-sex couples by nature do not raise their common children. Where they do raise children, this  is usually the result of a family break-up, and it remains to be asked whether being raised by self-affirmed homosexuals is not something children need to be protected against. In any case, the typical situation of homosexual partnerships is that of two incomes and no kids. Even without entering into any debate on the morality or immorality of homosexual relations, one does not see why each of the partners cannot earn his own salary and acquire his own pension entitlements. It seems therefore highly inappropriate, and would set a perverse incentive, to hand out tax breaks, or survivors’ pensions, or similar privileges, to same-sex couples.

Special protection by necessity implies that no other form of togetherness should receive the same protection. Even where a legal system tolerates the living together of unmarried (different sex or same-sex) couples, it should under no circumstances pretend that such constellations merit the same protections and incentives as marriage.

If the family is to be saved from its gradual destruction, laws must be changed to reflect the purpose and meaning of marriage:

• Marriage shall be between one man and one woman.

• The commitment that marriage is to last life-long must be reflected by the law. This means that, ideally, divorce should not be possible. Where it is possible, it should be available only under very restricted circumstances. In any case, laws regulating the consequences of a family break up should be designed to protect the innocent partner, rather than discarding as irrelevant the responsibility of each partner for the break up. They should also discourage subsequent second or third marriages.

Fiscal and social advantages should be given only to couples who, being married, have made a real commitment between themselves and towards society. These advantages should on the one hand compensate parents for the contribution they make to the common good of society, and on the other hand enable them to fulfil their tasks. No such advantages, or at least considerably less, should be given to couples who live together but are not married.

In addition, to ensure the equal political representation of families, children should be given a vote in elections from the moment of their birth. Until they reach the age in which they can themselves participate in elections, it should be the parents’ right to vote on behalf of their children.

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[1]       A prototype for such low-grade “marriages” is the French pacte civile de solidarité (PACS), which was open to both same-sex and different-sex couples, whereas marriage remained open only for different-sex couples. In 2013, France re-defined “marriage” to include same-sex couples. The PACS continues to exist.

[2]       The first country to have legally recognized “marriages” between persons of the same sex was the Netherlands in 2001.