It’s a Nice Day for a White Wedding


Christopher Pearson writing in The Australian has (or thinks he has) the good oil on the social agenda of a third term Howard government:

Legislation preventing gay marriage was the Coalition’s most significant third-term concession to the more conservative of its supporters. In the fourth term, we can expect further changes to matrimonial law.

Pearson starts with the usual refrain about divorce “sky-rocketing” after the introduction of no-fault divorce. It would be interesting to compare Australia’s divorce statistics with comparable countries or jurisdinctions which haven’t liberalised marriage laws. I doubt very much there’s a hard and fast causal link here – it seems to me that the law has followed social change rather than the other way round. The mantra we constantly heard (well actually we didn’t hear too much since the ALP passed the laws Pearson referred to in a lay-down misere – but from the contemporaneous debate in the States) with regard to same-sex marriage was that it would “weaken the institution”, the social bond, the sacredness of commitment etc etc. Never mind that Britney Spears and other Hollywood Celebs (even those who are not former poster girls for sexual abstinence) demonstrate that hetoresexual marriage is not always a result of a deep commitment.

But Pearson has the answer – covenant marriage. Coming soon to a church near you from the Government that tried to bring you a ban on IVF for single women and lesbian couples. Already in place in those bastions of liberalism – Louisiana, Arkansas and Arizona. Louisiana, desperately missing a Governor like Huey P. Long, has already flirted with the bold legislative step of banning hipster jeans.

ELSEWHERE: David Tiley at Barista has a classic post examining how all this ties in with lerve…

So what is covenant marriage? Pearson explains:

Covenant marriage is a more binding form of union. Commonly, it involves pre-marital counselling and counselling afterwards if trouble arises. Divorce can take two years or longer and is only available on very limited grounds. In Arkansas, those grounds are “cruel and barbarous treatment” which encompasses adultery, physical or sexual abuse, conviction on a felony or abandonment. Divorce under a covenant marriage involves the attribution of responsibility, and has consequences in the division of property and decisions about custody of children.

I’m totally opposed to any state sanctioning of such “covenants”. Loyalty, commitment and integrity are central to any partnership or friendship. I believe that one should stick by those one loves, through ups and downs. As Springsteen put it:

Though our love may have died
and our luck run cold
With you forever I’ll stay

There is no doubt in my mind also that the increased propensity of people to wait for a “perfect” partner, to follow the advice of Cosmo to “discard friends who don’t do it for you”, or to treat partnership as some sort of commodified exercise in aesthetic or self-gratification are missing out on its true rewards, and are caught in the grip of a negative social and cultural trend. But the response is not, and should not be to build a state-sanctioned two tier matrimonial law.

Pearson evidences his dessicated view of intimate relationships by his casual comparison of marriage to a contract for the sale of goods:

Would-be covenanters are entitled to turn the question around and ask: if the state is prepared to enforce every other kind of civil contract, why not my marriage? We all have to pay our grocery bills, whether we like it or not. Why should something as serious as marriage, for those who choose to accept its traditional bonds, be set apart as the only non-binding contract?

Let’s flip this around again. It’s precisely because we live in a time where almost everything has a price on it, that Pearson feels the need to shore up this particular business arrangement. Max Weber pointed out long ago in his sociology of law that the reason why contract was so central to law in a capitalist society was that capitalism gave every incentive to break bargains and undermined traditional values and codes of honour.

One of the arguments raised in the debate (to the degree that there was one) in Australia about same-sex marriage was the feeling by many queer people that marriage was an institution with so much baggage that they didn’t really care for it and would prefer to live partnership in a different way. That’s an argument I personally find very attractive, and I also like the old anarchist question – why should you feel the need to have your commitment sanctioned by the state and/or blessed by the church? But I’m a libertarian about these things, and while I’d think seriously about whether marriage was an institution I personally wanted to buy into (as Pearson might have it), I think that everyone who desires it ought to have the right to enter into it no matter what their sexuality or gender.

But why then oppose “covenant marriage”? Well, I have no problem whatever if people want to bind themselves to a particular form of partnership voluntarily, perhaps because of their particular religious beliefs. Different traditions view marriage differently – not every church sees it as a sacramental bond, the Islamic take on divorce is much freer than the Christian (at least for men), and the Catholic Church has its own canon law on the validity of marriages. That’s all fine. But I see absolutely no reason why the state should endorse anything but a minimum civil set of requirements for the legal status of marriage.

To legislate for covenant marriage implies that those who “choose” it have made a worthier, more serious choice. The objections about freedom of choice that Pearson brushes aside so quickly are pertinent, but that’s not the main reason for my opposition. Simply put, it’s very clear that Pearson’s reference to divorce implies some sort of moral judgement and the notion of covenant marriage making divorce “a more difficult decision” is an absolutely gratuitous insult to people who’ve made that heart-breaking decision, as I believe most people do, in an attempt to protect the interests of both partners and children, if any. It implies a condescending judgement and it is completely illiberal in its assumption that marriage can only be dissolved through “fault”. There is a great irony in Pearson’s own reasoning, poor as it is. If “ordinary” marriage is some sort of disposable commodity, then why not extend it to everyone regardless of sexuality and gender and reserve the real thing for all those upstanding really moral people. The idea that covenant marriage ought to be sanctioned by the state is illiberal, reprehensible and abhorrent.

Hopefully this is just a trial balloon. But if not, welcome to Howardian Australia post July 1st.

Oh, and watch for Cardinal Pell’s next column.

About Mark Bahnisch

Mark Bahnisch is a sociologist and is the founder of this blog. He has an undergraduate degree in history and politics from UQ, and postgraduate qualifications in sociology, industrial relations and political economy from Griffith and QUT. He has recently been awarded his PhD through the Humanities Program at QUT. Mark's full bio is on this page.
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22 Responses to It’s a Nice Day for a White Wedding

  1. Stephen Hill says:

    Can’t see this idea getting up. And any sort of shotgun wedding attempt to push this through post July 1 will probably result in a fiasco that will make Billy Idol’s appearance at the Grand Final seem like a master stroke of synchronistic planning.

    If this were a mandatory thing between two parties it probably won’t make much difference. But if this is a sort of mandatory removal of “no fault divorce” provisions and I was the new Labor leader (whoever that may be) I would view this as mana from heaven.

    The reason being that the group greatest affected by these changes would be a core Liberal constituency, the “American Beauty” marriages – the sort of relationship breakdowns spurred through the vigorous pursuit of financial and professional success to the detriment of the personal relationship. These sort of people vote for Liberal in droves, and how are they going to react when what they most covet and have accumulated with such personal cost is apportioned in a completely different manner. This definitely has the potential to send the aspirationals into a greater fervour than Latham’s “ease the squeeze” (mind you that wouldn’t be hard the way it was communicated).

    However, from the tone of the article I think the Liberal wets are skeptical of this proposal and it is the sort of social policy that could spark some of the wets to cross the floor (I hope there will be more floor-crossing than this in the next two and a bit years). And surely the Wets might actually be wise enough to argue the merits illustrating such pragmatic faults.

    I actually think the increased conservative Christian presence is actually a possible Howard Achilles heal. If this group gets a bit too uppity (and Howard the pragmatist does try to keep them in their place), the Libs could be outflanked on a few issues. I know a lot of diehard Libs (mainly women) that all they were talking about after the election was Abbott and the abortion issue. I think this is why several women MPs Julie Bishop et al were so keen to kill this issue off.

    If I was the new Labor leader and I wanted to dent the popularity of the new leader I think Telstra (working-class voters) and divorce (aspirationals) would provide quite a significant new constituency.

    Mind you having just thought of the pragmatics, I would also add that I would reject the proposal on libertarian grounds as well. To quote a Foster Wallace character who wants to think of marriage not as “the decorous dance he’d watched his mother and father do for seventeen years” but as “true conjugal intimacy” I think the extreme difficulties of maintaining a relationship should not be overlooked.

    I have seen the affects many sham marriages have had on friends, and “keeping up appearances” is often not in the best interests of any of the parties. I remember during the HSC I had one friend who after his Maths exam said to rather mordantly: “back to the facade”. This was someone whose family circumstances had seen his mother and father refuse to talk to each other since the age of 15. But they had decided to fake that they had made up while he did his exams, then his mother planned to separate after the HSC. This performance was actually detrimental to my friend’s exam results, my friend took would was meant as a kind gesture as an act of condescion. And there are many circumstances I can think off where separation is much better than attempting to keep an unhappy partnership together. As Tolstoy put it “All happy families resemble one another, each unhappy family is unhappy in its own way.” And it is all these different ways that the conservative Christians just don’t have a clue as they attempt to impose their own moral standards on everyone else’s lives.

  2. Stephen Hill says:

    That should read “my friend took what was meant to be an attempt at a kind gesture as an act of condescenion.” Sorry, the last two paragraphs are an utter mess, I am just too tired to properly proof-read all that I have written, bloody windbag ole me.

  3. Mark Bahnisch says:

    Made a lot of sense to me, Stephen. Very good argument which I hadn’t thought of.

  4. Andrew Norton says:

    I am in favour of gay marriage, but am I against covenant marriage? I certainly would be if that was the only type available. But continuing the analogy with other forms of contract, you can write your own contracts of varying degrees of flexibility, and expect the courts to enforce them, so why not marriage? Love may be the defining feature of marriage for most people now, but it is hardly a universal feature of the institution. I doubt this idea has political legs; there is not enough demand for it. But I am not sure that it is as problematic in principle as you say.

    Incidentally, the reason capitalism needs contract is not that it destroys trust. Modern social science shows that trust of strangers is generally much higher in capitalist societies than countries with other types of economies. But in any culture it is prudent to get some protection in dealing with people you don’t know, and contract provides it.

  5. flute says:

    You mean covenant marriage doesn’t exist in Australia? What the hell have I been doing for the last 8 years? Get me a lawyer!

  6. Don Wigan says:

    Although not all that relevant to the discussion topic (and Stephen has covered that well, anyway) I was grateful for the reference to Huey Long.

    He’s a figure I’d often heard about, once that George Wallace was some latterday Huey, but I’d never troubled to research. I’d assumed that he was some sort of demagogue who’d exploited parochialism to the nth degree. While that was in his repertoire, there was clearly a lot more to him and he was a force for public good.

    It’s sad that some of these people pass too quickly into history without enough known about them, especially the positives and the challenges they faced. In your state, Mark, there were two great early Labor leaders, T J Ryan and E G Theodore, who were about the most effective anywhere until Dunstan.

    Both moved on to the federal stage and would have made a big impact but for unfortunate circumstances. Ryan became ill and died suddenly (shades of Latho now, well not wholly). Theodore got dragged back by a smear from a mining financial scandal (Mungana?) and the Labor split.

    When we consider a new leader, that sort of dedication would go down well. Gilly and Rudd stand up well on that measure.

  7. Mark Bahnisch says:

    Don, Huey P. Long was an interesting figure – extremely corrupt but arguably the only seriously social justice oriented pollie in 20th century American history. Roosevelt was extremely worried about a run against him from the Left in 36 before Long was assassinated. I recommend Harry Williams’ classic bio. It’s a pageturner and a book I’ve reread and reread. As Zoe knows, one things the Yanks do supremely well is political biography.

    Andrew, you’re probably defining trust differently from Weber. His particular concern was the lack of trust in business contexts. Ie if I put my car out on the road for sale and you offer me 4k, I agree but you say you can’t pay me til Tuesday, and someone comes and offers me 4.5k the next day after I’ve agreed to sell it to you, then all the incentives in capitalism push me towards ignoring our bargain and selling it to the other buyer.

  8. Andrew Norton says:

    Mark – Your example is only true of one-off transactions between strangers. If your business relies on reputation and repeat custom the incentive is to keep your word. In this case, even though we have never met face-to-face we mix in the same electronic circles, so you would think twice about breaking your word. I could write posts and comments about how you are not to be trusted. So I think this kind of analysis misreads the financial and social incentives in which capitalist economies are embedded, and this is before we even get to other restraining factors like individual conscience.

  9. Mark Bahnisch says:

    When I get a chance, Andrew, I might go back and look at Weber’s argument. I remember finding it persuasive when I first read it a while ago.

  10. Mark Bahnisch says:

    Andrew, on reflection, if trust is so prevalent in business, one wonders at the volume of corporate litigation and the extensive caselaw on breach of contract.

  11. Polly says:

    Andrew, having read previous posts of yours I am surprised by your naivete.
    If there were trust in business there would be no need for contracts.
    As for social incentives these are subsumed by and subordinate to the economic incentives.
    Corporations do not have “individual conscience” not even that of the people running the corporations because they have a responsibility to run the business for the benefit of the corporation.
    If corporations had consciences James Hardy would not have tried to avoid their liabilities to workers. They only agreed in the end because of the damage being caused to their business and the threat of embargoes on their products. The economic incentives were what ultimately forced them to agree to fund the liabilities not conscience or social incentive.

  12. Andrew Norton says:

    Mark, Polly – I never said contract law is not needed; far from it. Contract law simplifies and clarifies transactions and settles disputes when they arise. But this works on huge base of trust (or perhaps confidence is a better word). There are tens if not hundreds of millions of contracts in force every day (let me see – with my electricity provider, Telsra, ISP, gym, bank, insurance company, body corporate, to provide a few examples) , and millions more that go from start to finish on the same day (everything you buy and sell has contract law behind it, should it be needed). Only a microscopic percentage of these end up in dispute, and an even more microscopic percentage cannot be resolved between the parties. These provide the extensive case law that Mark mentions.

    I’d agree that the larger the entity, the weaker the social incentives and the role of individual conscience (because the owners and employees are such a large group it is harder to pin blame). But large companies are much more vulnerable to reputational damage, because the publicity is so much greater (if my local milk bar rips me off nobody will be interested, if a bank does it A Current Affair could give it a run). James Hardie is going to pay out much more than it legally has to, because as Polly says they were threatened with boycotts.

  13. Nic White says:

    Im with Andrew on this one. I honestly do not see a problem with the implementation of “covenant marriage” as described by Pearson, for those who want it.

    Take a pair, who are not necessarily religious, who when going into their marriage decided that they wanted a full lifelong commitment to each other, no matter what, and were determined not to get divorced. If they strongly believed in this, they would want to seal it with a Pearson-style contract. This would allow one to get out only under the outlined circumstances, which I think everyone agrees should be upheld (even the church, I think), and to be subjected to financial penalties. The pair would want this contract as extra security and inscentive to make it work. Its good that it also requires mandatory councelling – something I think all prospective couples should have no matter what.

    You of course should not be able to force this on anyone. Its all about creating choice – which Ive been dogmatically holding on to for a long time. If you want to have a non-binding marriage, fine, if you want to have a restrictive covenant marriage for whatever reason, fine, if you want to not get married, fine.

    Its just a piece of paper anyway. De factos have exactly the same problems if they live together.

  14. David Tiley says:

    Actually, I presume people can already sign a civil contract on top of the marriage, a prenuptial, which does everything Christopher wants to see.

    I can’t get past the concept of a two-tiered marriage system. Big Deal Marriage, as opposed to Little Deal Marriage and definitely as opposed to Living Together in wacky Sin.

    At the moment, we can opt out (like me) and it is personal, doesn’t involve the State and makes no difference to the status of ordinary marriage. But this, formalised by the State, does actually do something to the marriages of the millions of ordinary wedded citizens. It makes them second tier.

    Why are so many people opposed to gay marriage? Homophobia, yes, but some feeling that the status of marriage should not be cheapened. I disagree with this, I hasten to add.

    A great topic, btw, which I seized with shrieks of joy. Thanks Mark. Now, your thesis and my reading. Stem cells sheeesh.

  15. James Farrell says:

    Given that the novel twist here is that the covenant is voluntary (after all, every reactionary wants an end to no-fault divorce), the first thing one needs to grasp is why anyone would choose it. Pearson doesn’t say much about this, for some odd reason. It only makes sense as a device to be placed at the disposable of people who don’t trust themselves to act in their own best interests. It’s like giving someone your car keys to a friend and insisting that he not give them back if you’re too drunk to drive; or buying a term deposit so you can’t get your hands on the money. Specifically, the person the covenant marriage is designed for is one who says to himself: ‘I know it will be best for all concerned (the two of us and any children we have) in the long run if I stick with Ms X; on the other hand, I know I won’t be able to control my violent rage, lustful urges, and propensity for emotional cruelty unless faced with the threat of a severe material penalty (loss of property and custody).’ Now, I don’t how many people do reason this way, but it seems possible that there are a few. The question is whether you need legislation and indeed a whole new social institution to facilitate such a contract for people who want it. I imagine it’s possible to have a civil contract written up such that you forfeit all your property if you break your marriage vows. What I’m not sure is, whether you can also contract to forfeit other rights, like custody or the right to remarry. As far as I know it’s not possible for a heroin addict to sign away his right to liberty so that his friends or doctors can lock him up and detoxify him. So probably the same kinds of limits apply to the marriage thing. This is the kind of thing Ken could clear up with a few lucid paragraphs. But maybe someone else knows.

  16. Whats the bet the very people who want a “covenant” marriage (I assume its NOT a “convent” marriage) are those who at the extremes join our old mates in the mens rights gang The Blackshirts and are the ones who spend $$ and time in the various courts “taking that bastard /bitch to the cleaners” and fighting over the kids neither of them really wants. Or taking the old aussie standby and doing a moonlight flit to Queensland or NT and avoiding maintenance.

  17. Mark Bahnisch says:

    That thought had crossed my mind too, Francis.

    You’re right James – we need Ken back! I’m under the impression that pre-nups are unenforceable and that you can’t contract away civil rights that you have but I did Contract Law so long ago I have no idea whether I’m right or not.

  18. Ken Parish says:

    I’m back but not yet inspired to do a primary post. Part VIIIA of the Family Law Act 1975 (Cth) (starting at section 90A) establ;ishes a regime for enforceable “financial agreements” that is roughly equivalent to the US “pre-nup”. These agreements are binding and must be enforced by the Court, but can be set aside in cases of fraud, unconscionable conduct or material change of circumstance in relation to a child.

    Presumably it would be possible to draft such an agreement so that different property settlement consequences occur depending on the cause of marriage breakdown. However, I’m not a family law expert so I’m not sure of that.

    It certainly isn’t possible under current Australian law for a person to contract out of their ability to obtain a no-fault divorce after 12 months separation, nor is it possible to contract out of the ability to seek child custody (which is called something else now, for reasons of political correctness as far as I can tell) or to remarry.

  19. Mark Bahnisch says:

    Cheers, Ken, that makes it clear why there’d need to be a change in the law to allow “covenant marriage”.

  20. James Farrell says:

    Well, there you go. It’s alive! Thanks, Ken.

    So you can’t contract away the relevant rights under current law. Therefore, it is a matter of legislation change, assuming there’s no constitutional obstacle. Well, if there are people out there desparate to make arrangments to ensure they will be punished for breaking their vows, I’m not sure I’m inclined to thwart them. But I really can’t see a mass movement forming behind it: it’s not as though there’s anything very romantic about promising your true love that she’ll be able to have you punished if you play up.

    My only reservation is that young couples could be pressured into covenants by excessively strict parents – especially from those illiberal communities that still go in for arranged marriages. A minimum age of twenty-seven or so would be advisable at first as a safeguard that the arrangement is voluntary.

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  22. Wilson says:

    I believe that any day will be good for the wedding you choose. My son wanted to get married by the ocean, but Kovid made adjustments to his plans. Well, they couldn’t spend money on a big wedding, but they were able to buy the best rings for each other – I love to find pluses in any event)) They may still do a big event on their anniversary day but I’m not sure about that.

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