Note: This article first appeared on AVFM Romania.
In the American state of Oklahoma, Todd Russ has filed a bill that would abolish marriage certificates altogether in the state with a population the size of Ilfov county including Bucharest (3.8M).
The motivation behind the legislative project is rather complicated and it has a lot to do with the insistence of some courts to legalize same-sex marriage despite a state-wide referendum rejecting the idea. But that’s less relevant. What’s more relevant is Todd Russ’ statement which reads:
Marriages are not supposed to be a government thing anyway
No matter what one might think about Mr. Russ, this statement is not only valid in Oklahoma, but it’s universally valid across the planet.
Historical context
Marriage, throughout almost all of human history, was not the business of the state – but rather a private affair, supervised by a religious institution in most cases.
We say in most cases because, for instance, in the Romanian territories in the 17th century and even up until after the formation of modern Romania in the 19th century, the word “family” doesn’t appear at all in the state’s laws and it’s barely mentioned in the theology. The family was thought of as being built around a “legitimate couple” – and a couple was deemed “legitimate” if it had the acceptance of its community1. The acceptance by the Church was recommended, but not mandatory.
Moreover, despite the image presented to us today by the mass-media, marriage was significantly more decentralized and detached from religion before the modern age. For instance, the Hungarian diplomat, Anton Veracsics (1504-1543) wrote in his book about the Romanian territories that:
[Romanians] can get married unpunished multiple [successive] times although occasionally that’s frowned upon. And they can also divorce even in the second marriage if things don’t work out, even if children resulted from that union – and they can do this without committing a crime against the State2
This is why, when the Church finally took over the marriage business (although even then, this takeover was rather partial), the pre-existent state of decentralized marriage (and therefore private) had already become a tradition – and so the Orthodox Church had to make certain concessions.
Therefore, unlike Catholicism, the Orthodox Church allowed re-marrying up to three times – not because Orthodoxism was any sort of “liberal” force, but because it was a way to attract the formation of the family under the umbrella of the Church. In modern economic language, we can say that the Church adapted to the market in order to gain customers.
The use of such language may offend some people, but it’s an undeniable fact that the institution of marriage was a very profitable business for the Church (and it still is today).
The history of marriage in the Romanian territories is far more complicated than what we can write here and now – and a decent evaluation of it is further impaired by some contradictory sources and the partisanship practiced by several academicians and sociologists.
But, one thing is clear: as a historical norm, marriage is in and of itself a private and decentralized affair, spared from state intervention.
Moreover, Romania is not some special snowflake in Europe. Up until the 19th century, most of continental Europe not only didn’t have the state involved in marriage – but the Church wasn’t terribly involved either.
Both in the Orthodox world and the Catholic world, if two individuals of opposite sexes asserted that they had exchanged marriage vows, even without witnesses, the Church would accept their marriage as valid.
The only major exceptions from this rule in continental Europe are the Netherlands and Belgium whom, through the concept of kerkelijke huwelijksaankondiging, have basically centralized marriage even before the 16th century Protestant Reformation. To this list of exceptions, we should add England and Wales who introduced the concept of state-issued marriage certificates in the 14th century.
Present day
State-issued marriage certificates aren’t the norm everywhere even today. In the Canadian province of Quebec, for instance, marriage certificates are optional3 and in many countries of Europe (including Romania), the legal benefits of state-sanctioned marriage are virtually non-existent, therefore rendering the state-issued marriage certificate as de facto optional.
In Germany, for instance, the number of single people (i.e. people without a stable partner) did not drop at all since the fall of the Berlin Wall, but the number of married people is in a constant and consistent drop4, making Germany a good example of marriage privatization.
The difference in language is also worth metioning. In Latin-derivate speaking countries, such as our own, we say marriage certificate – which is an official paper that certifies a pre-existent state of affairs – analogous with the birth certificate, which is issued after the birth has occurred.
In the US (and everywhere English is the basic language), the common term is marriage license – which is an official paper through which one obtains permission from the state to do something, in this case to start a family. A license is the paper without which one would break the law. Think of it as analogous with a driver’s license: driving a car on public roads without a license is a crime.
Although it would seem that the marriage license from the Anglosphere and the marriage certificate from here fulfill the same role – the subtle difference in language matters a lot, especially in public perception but also in the law. This is why a proposal of re-decentralization of marriage (or privatization as we call it) is seen differently from how it would be seen in Italy or Romania. And by “different” I mean that it encounters a harsher opposition, and in the Oklahoma case, which triggered this article, the opposition is even harsher because it comes from a gentleman who is not exactly popular amongst the mass-media.
Why is this a good idea
Now that we know at least the basics of the historical context and present-day context, let’s review a few of the reasons why the privatization of marriage would solve more things than it would break.
- First of all, it would equitably address (and perhaps even solve) the never-ending discussion regarding same-sex marriage.
The churches or the organizations who do not support same-sex marriage would then be able to choose not to support it, whilst the churches and the organizations who do support the idea would be able to choose to act upon their support – and the market will settle accordingly.
Sure, it’s not a perfect solution – but there are no solutions, only trade-offs. And this is undoubtedly a better trade-off than the Danish trade-off, for instance, where the churches are forced by the State to sanction marriages they disapprove of.
- It would significantly undercut the power that family courts currently enjoy.
Without a state-issued marriage certificate, the courts would have fewer means to redistribute the wealth from one spouse to the other (usually from the husband to the wife). Admittedly, this is all dependent on the jurisdiction but, in Romania for instance, a couple that does not have a state-issued marriage certificate doesn’t end up in the courtroom at all unless there’s a disputed custody of children.
And even in that case, each spouse’s wealth remains clearly separated and each spouse must prove beyond all reasonable doubt what contributions they made if they demand a split of wealth. In other words, the legal standard is higher – which is of course fantastic.
- It would make prenups more solid.
At the moment, the notion of matrimonial convention – as the prenups are called in the Romanian Civil Code – is pretty vague. In practice, you are at the mercy of the judge on whether the provisions of the contract remain in place or not – exactly when you need them most – during the divorce.
But if the state is removed from this equation, the prenup becomes just like any other commercial contract and the court only has to enforce it when one party refuses to abide by it – while the court has fewer instruments to meddle in.
Moreover, in this way, every couple would get to define their marriage as they please and introduce various rights and responsibilities in their contract that the state may not introduce on its own.
Protection against paternity fraud, is one example. Strict rules on what happens when children come into the equation is another example; or even inheritance in advance for situations when you’d want your first child to inherit all your wealth – and not leave the state to come in and divide it using laws that make no sense whatsoever as is the case now in France and Romania.
All these and many others could become part of the family law for individuals who want them without allowing the state and the courts to modify them depending on how the wind blows today.
- Potential cost reduction
This is a trickier one to notice because the costs related to marriage differ vastly from jurisdiction to jurisdiction and are hard to estimate overall.
For instance, in Romania, the costs vary from 15€ to 90€ in the same city, and to those costs one must add the costs required for the medical tests and various other small fees that you can only pay if you go from one state institution to another and pay them directly. Looking across the Prut river on our neighbors in Republic of Moldova, the marriage registration alone can cost up to 300€ – which is more than the median monthly income in Moldova. And, just like here, Moldovans should also add the various smaller fees that the state demands and the costs of medical tests.
Why are things this way? Because the government has no competition. And when the monopoly is absolute, inefficiency isn’t far behind. What if instead of one, there were 10 institutions that sanction marriage?
Just like in any other business (and marriage is a business for the state, make no mistake about it), the competition would bring not only better services but also smaller fees in the long run.
- More stable marriages
OK, I realize that this argument may piss off a lot of people, but please bear with me.
The traditionalist sector of society, in particular, tends to keep throwing studies about how unmarried parents are worse than the married ones. There is some truth in that statement although it’s by no means so absolute. But very few dare to ask the honest question: why do so many avoid state-sanctioned marriage?
Actually, a better question would be: why has marriage become so unattractive? Because it’s obvious that’s the case – but very few have the guts to ask why and those that do proceed to cherry-pick answers that support their agenda.
But, when you have no control over the terms of the contract – realistically speaking, how could anyone fully informed and in full conscience sign such a contract?
Moreover, the “terms of the contract” keep on changing without your consent. For instance, those who got married in 1988 under Communist law, are now subjected to the current Civil Code. Is it fair for those who signed a contract in 1988 which did not contain notions such as ”life annuity” (which works like the notion of ”alimony” in the Anglosphere) to be now subjected to a whole different contract that they did not sign? More and more people say no – even though they don’t explicitly articulate it.
On the other hand, if the act of marriage is decentralized and individuals can establish the terms of the contract themselves, then those same individuals would have a higher incentive to abide by the contract when they know clearly what’s coming to them if they attempt to break what they agreed upon and signed in full conscience.
Most people who end up rightfully complaining about the injustices committed by various courts are not, in fact, thoroughly informed about the terms of the marriage contract. It needs to be said that this is in part their fault as well for not seeking to inform themselves but think of it this way: the section dedicated to family from the Romanian Civil Code is over 200 pages written in partly archaic and partly legalese language. I don’t think I am mistaken when I say that most of the Civil Code (or the equivalent in other nations) is just plain incomprehensible for most of the populace.
Another argument in favor of more stable marriages is the fact that the current law offers incentives for divorce after 10 or 20 years of marriage, incentives that never existed before in the Romanian legal tradition.
At this moment, if you file for divorce after 10 years of marriage, the poorer spouse has the “right” to a higher percentage of the wealthier spouse’s wealth and also the “right” to request alimony (which did not even exist until 2009) – and this applies even if the divorce is filed as a common fault divorce. Things get even worse when it comes to marriages that are over 20 years old.
At the end of the day, today’s approach is a “one size fits all,” and the “one size” keeps on changing, often times quite radically in short periods of time – and not always for the better.
It is perhaps the time to admit that the state’s “size” is not necessarily the best size for everyone and that individuals know better what “size” fits their relationships.
Conclusions
We don’t believe that the decentralization or privatization of marriage will solve all the problems arising from family law. We don’t even assert that it’s a perfect solution. But, considering the aforementioned arguments, we do assert that it would be a step in the right direction.
As we speak the Romanian Parliament is discussing the possibility of allowing priests to issue marriage certificates as well as perform the ceremony. If I were a legislator, I would extend this to any NGO or firm that wishes it. Moreover, the bureaucracy should also be severely cut back (or at least asked to compete with the private sector) – just like our legislators did with amicable divorces (i.e. divorces where the spouses agree on the terms privately, regardless of what the law says).
The privatization of marriage, at the end of the day, should be supported by everyone on the political spectrum – from progressives to libertarians and from traditionalists to liberals. All the ideals about marriage within these groups (and others) could be accomplished without excluding or negatively affecting those who have a different view on marriage.
I find it disappointing that “progressives” seem to be the most vehemently against this idea even though, believe it or not, this idea would allow their vision of marriage to become immediately legal without spending years and years lobbying parliaments and governments.
I find it equally disappointing that too many religious groups are avoiding this idea although there is no doubt that this trade-off would be the one that respects their desires the most.
There is no complaint – whether you want to “save marriage” or “reform” it – that cannot be solved by more liberty.
References:
(1) Simion, F.M.; Teaha, T.; Șerb, I.; Ilișiu, I. – Nunta la români: studiu istorico-etnografic [Wedding for Romanians: A historical and ethnografic study], ”Arcadia” collection, “Grai și Suflet, Cultura Națională” publishing house, 1995
(2) Verancsics, A; Eperjesy, K – De situ Transsylvaniae, Moldaviae et Transalpinae liber tertius, K.M. Egyetemi Nyomda publishing house, Budapest – 1944, from the Bibliotheca scriptorum Medii Recentisque Aevorum., Saeculum XVI series.
(3) Civil code of Quebec, Book Two, Title One, Chapter I
(4) Adams, B.N. – Handbook of World Families, Sage Publications Ltd., 2005, p. 300-301
