Marriage is a socially sanctioned union that imposes rights and obligations on the parties. Although it can consist of a variety of combinations of men and women, the most common form has been a monogamous relationship between a man and a woman. Although libertarians would permit individuals to make the decisions that are most likely to increase their welfare, subject to limitations if there are effects on third parties, seldom have people been free to make their own decisions about marriage—and especially their spouse. For most of history, decisions about whom someone would marry were controlled by others, especially the spouses’ families. As the ability of individuals to choose their own spouse has increased, familial restrictions have been replaced by legal ones imposed by the state. The most important restrictions on whom one may marry are on the ability to determine the basis on which a marriage will be dissolved and on the financial and custodial arrangements that will follow. Restrictions on the right of multiracial couples to marry have been removed, yet these restrictions remain in place in most states for same-sex couples. Most industrial nations have instituted a system that permits unilateral divorce and combined this system with limited compensation to a divorced spouse, which often results in less desirable outcomes than those that people could agree to on their own.
Throughout most of history, the rights and obligations of marriage were informal, enforced by family or clan members. With the introduction of the Justinian Code in the 6th century, laws were established to regulate marriage. Nevertheless, for most couples in Europe, marriage continued as an informal arrangement. However, in 1563, the Council of Trent required that all valid Catholic marriages had to be celebrated in a Catholic church by a priest and before two witnesses. The Reformation effectively introduced civil marriage, regulated by the civil authorities, although it did not preclude marriage being solemnized in a religious ceremony.
Legally, marriage is a contractual relationship that vests the parties involved with a new legal status. Just as with other binding contracts, marriage requires that the parties have the capacity to enter into contracts and that they be free of duress. However, marriage, unlike other contractual relationships, imposes a legal status that cannot be terminated at the will of both parties, but requires the intercession of a court. With few exceptions, a marriage contracted in one place is regarded as valid everywhere. The earlier British and American laws of marriage were characterized chiefly by the view that husband and wife are one legal entity for whom the husband acts. Starting with the “married women’s property” statutes at the end of the 19th century, however, women have for the most part obtained equal rights and obligations within marriage.
Courts today are generally unwilling to address the ongoing marital relationship; as a consequence, legal regulations limit themselves to addressing the formation and dissolution of marriage. The major restriction on who may marry in the United States is the constraint on the right of same-sex couples to marry or receive any of the benefits of marriage. Although one state currently allows same-sex couples to marry, the federal Defense of Marriage Act permits, indeed encourages, other states not to recognize marriages between same-sex couples. At the same time, the federal government restricts the numerous federal benefits of marriage to heterosexual couples only.
The laws governing the dissolution of a marriage and the financial and custodial arrangements that might follow prevent many couples from arriving at some voluntary arrangement. Between 1969 and 1985, all the states either replaced their laws respecting the grounds necessary for a divorce—adultery, desertion, cruelty, and so on—with no-fault divorces or added no-fault divorces to the grounds in place previously. In effect, these no-fault laws permit either spouse to dissolve a marriage unilaterally. During the earlier era, most unsuccessful marriages failed for reasons other than the fault of one of the parties. The result was that couples often negotiated the dissolution of their marriage using fabricated testimony to establish fault. In these negotiations, they could effectively ignore the statutes controlling the financial and custodial arrangements at divorce. The no-fault divorce laws not only changed the grounds for divorce, but they increased the importance of the statutes governing the financial and custodial arrangements at divorce. These laws usually provide for an equal division of legally recognized property, short-term rehabilitative spousal support, and child support. The courts continue to favor mothers in the case of physical custody of children while generally providing for joint legal custody.
The current divorce laws in the United States tend to reduce social benefits relative to the outcomes that would have occurred had voluntary agreements between spouses been permitted. Current laws permit a party who initiates a divorce to ignore some of the costs of divorce. First, current law does not adequately compensate a spouse who has limited his or her career in order to provide household services to the partner. Second, divorced spouses may still be strongly attracted to their spouse and children and suffer accordingly, a suffering uncompensated by the courts. Third, the marriage in the process of being dissolved was potentially the result of a long and costly search, for which the divorced spouse will remain uncompensated. Last, the quality of life of the divorced couple’s children could well deteriorate relative to what might have prevailed in the absence of the divorce. It is often impossible to negotiate a superior agreement than that imposed by the courts because of the heterogeneous and limited resources of the spouses and because of high transaction costs.
In summary, from a libertarian perspective, social welfare could be improved by permitting people more freedom to choose their spouse and to determine the grounds under which their marriage can be dissolved, together with associated financial and custodial arrangements. For many people, welfare would be increased by choosing mutual consent as the basis for a divorce—especially for established marriages—because then it is more likely that a divorce would only occur when the net benefits are positive. For both married and unmarried parents, laws that require parents to protect and support their children are appropriate because of the external effects of the parents’ actions on their children.
Becker, Gary S. A Treatise on the Family. Cambridge, MA: Harvard University Press, 1991.
Dnes, Antony W., and Robert Rowthorn. The Law and Economics of Marriage and Divorce. Cambridge: Cambridge University Press, 2002.
Parkman, Allen M. Good Intentions Gone Awry. Lanham, MD: Rowman & Littlefield, 2000.
Posner, Richard A. Sex and Reason. Cambridge, MA: Harvard University Press, 1992.
Originally published .