ABSTRACT
Marriage cannot be spoken of as a fixed legal concept since it has meant different things at different times and in different places. Today, even within a single country, there may be different cultural conceptions of marriage and people may have very different motives for marrying. Nevertheless, politicians, churches and courts tend to speak of ‘marriage’ as if we all understand and all agree on what is meant by the term. Take, for instance, the pronouncement by the President of the Family Division in England and Wales in Wilkinson v Kitzinger [2006] EWHL 2022:
It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or “nuclear family”) in which both maternal and paternal influences are available in respect of their nurture and upbringing. (para. 118)
Recognizing that marriage plays an important part in disciplining citizens, governments endow the institution with prophylactic qualities against crime, poverty, loneliness and all forms of social disorder, including challenges to established gender roles, thus justifying the provision of financial incentives for the married. These incentives, such as tax benefits or access to health care, not only add an important practical impetus to marry, but help to define the institution itself. For this reason, this chapter will approach the subject from a historical perspective and, for reasons of space and my own expertise, will focus on feminist legal theorizing in the UK, with some reference to influential contributions from other common law jurisdictions.
