Journal: Tyndale Bulletin
Volume: TYNBUL 68:1 (NA 2017)
Article: Could Marriage Be Disestablished?
Author: Julian Rivers

TynBull 68:1 (2017) p. 121

Could Marriage Be Disestablished?1

Julian Rivers

([email protected])

Summary

In this paper, I respond to Dr Daniel Hill’s argument that English law should cease to recognise marriage. Rather than focusing on general arguments of political theory for and against such a proposal I consider practical arguments based on the development of the law in response to injustice in family relations. A law of marriage of some sort seems inevitable. This conclusion is reinforced by the arguments of libertarian and feminist writers who seek to ‘abolish’ marriage. Looked at more closely, they do nothing of the sort; they redefine it. Finally, I discuss the problem of unregistered marriages among British Muslims as an already existing example of marriage without the state. I conclude that law has to respond to existing social forms according to an idea of justice in domestic relations, and for that reason marriage cannot simply be ‘disestablished’.

1. Introduction

Commentators on the recent development of English family law have noted two trends that stand in a paradoxical relationship. On the one hand, there has been a steady rise in cohabitation, such that it has become overwhelmingly normal for young people to spend some time living together before getting married; around 80% of couples now do this, rising from around 30% in the early 1980s.2 The proportion of

TynBull 68:1 (2017) p. 122

cohabitants eventually getting married has also dropped from about two-thirds in the 1980s to about half today.3 An increasing proportion are separating instead. About 10% remain simply as cohabitants. On the other hand, this increasing indifference to the status of marriage is complemented by the attempt on the part of sexual minorities to capture marriage as a high-value symbol in campaigns for social legitimisation. There is no reason to suppose that either trend has levelled off. The normalisation of cohabitation is still relatively new and has yet to work through an entire generation’s lifetime; the logic of ‘equality’ applied consistently to an increasingly wide range of intimate relationships points to an ever-widening legal definition of marriage. And even if the remaining minorities here are too small to achieve legislative success, in time judiciaries operating under the rationalising imperative of equality and human rights law may well draw their own conclusions.4

In this context of social change and moral controversy, calls for ...