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  • Writer's picturepaulamwaterman

Marriage As A Legal Institution

Most people don't want the government involved in their marriages, and in fact the definition of marriage and what people can get married to whom has been argued and fought about for years. Regardless of what we want the definition of marriage to be or not to be, there are some important reasons the government should be involved.

If we go back to the history of marriage, whether one believes it was ordained by a higher power, or simply evolved as part of the history of humanity, marriage has always been a core building block of society. The perpetuation of the species, the system of rules for the granting of property rights, next of kin rights and responsibilities, and the handing down of feudal authority were all handled by the institution of marriage.

In ancient times, most couples married young and were from a small circle of family and clan. These were the first "arranged marriages" and was the custom for much of history. Marriage wasn't seen so much as a love match, but a matter of securing not only the strength and perpetuity of the tribe, but also as a means to increase the economic stability of the families involved. Another main goal of marriage was to act as an alliance between families or countries. We see this borne out in ancient Egypt, where the practice of sibling marriage was common, and even in modern-day Europe, many royal marriages are to closely related family members.

Most ancient marriages were monogamous, meaning that individuals could only be married to one person at a time, and only to the opposite sex, or they were polygamous, which was the practice or custom of having more than one wife or husband at the same time. The role of wives in each type of marriage was to produce legitimate offspring, and children born of concubines or adultery did not enjoy the same rights and privileges as children born within the confines of wedlock.

Unfortunately for most women in ancient times, and still today in cultures around the world, marriage was not an equal partnership between spouses. Almost without exception, men held authority over their wives and offspring, locking women into an unbalanced power structure as the disadvantaged member. In the United States, Coveture was the law of the land since at its foundation and was taken from a legal doctrine in English common law in which a married woman's legal existence was considered to be merged with that of her husband so that she had no independent legal existence of her own.

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.[2]

So how does the idea of "Coveture" apply to us today? The most important thing to understand is the concept that a married couple is seen as "one person" in the eyes of the law. Whether it be a same-sex couple or a heterosexual couple, both parties are seen as one entity. The implications are vast; any assets or debts acquired during the marriage are considered marital property and owned equally by both parties. It doesn't matter which spouse acquired the asset or debt, it belongs to both. The only exception that many states recognize is the rule of inheritance. Inheritances, when kept separate and not commingled with the marital estate, can remain separate property to the person who received it.

As a divorce mediator, I am constantly explaining this concept to couples going through the divorce process. In some marriages, both parties work and earn similar incomes, but in other situations, one parent may stay at home to take care of the children, while the other parent works to support the family. The incomes in both situations belong to both parties as does any 401k's or retirement benefits received during the length of the marriage. In the same way, any debts accrued during the length of the marriage, no matter who accrued them, are the responsibility of both parties.

So when a couple goes through a divorce, it is my responsibility to help them with the tricky business of dividing their marital estate. Every state has different rules about this division; California is a community property state which essentially means that in the event of a divorce, all assets and debts that were acquired during the marriage are automatically divided 5/50. Other states employ a different way to the marital estate using the equitable division model. In this model, if couples cannot negotiate a settlement between themselves, the judge will impose a division of the marital estate that takes into account the divorcing couple’s assets, debts, needs, financial contributions to the marriage, and how long they were married. The judge may also consider future employability, earning power, spending, and savings habits of each part to divide the assets equitably, but not necessarily 50/50.

As relationships evolve and change in our society, the necessity of marriage is questioned more and more by romantic couples. Many couples choose not to legally marry, but when their relationship falls apart, face the harsh reality of dividing jointly acquired property with no legal protection from the laws governing marriage and divorce. In my experience, many of these couples go through extended court battles trying to determine and establish a fair way of dividing these assets. With no marriage or divorce laws to govern these breakups, contract law or civil court comes into play, and usually, there is little to no protection for individuals in these relationships.

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