Benjamin Bestgen: Marriage



Benjamin Bestgen

Benjamin Bestgen takes an honest look at marriage in his latest jurisprudential primer. See last week’s here.

During my legal studies, a professor opined that one of the most legally significant things the majority of people will ever do in their lives is to marry and divorce (the other things were: entering into employment contracts, having children, buying a house and dying).

Writer Jane Austen started her most famous novel asserting that “It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife.” Philosopher Arthur Schopenhauer countered that marriage meant to halve one’s rights and double one’s duties and is akin to grabbing into a bag of snakes while blindfolded and hoping to catch an eel. He also noted that to marry meant that spouses do their utmost to become thoroughly disgusted with each other.

Despite many witticisms, depictions of marital bliss and detailed social observations on the subject, Austen never married. Neither did Schopenhauer, though both had opportunities.

People have pondered marriage for millennia and better writers than me have done a thorough job already. Philosopher Elizabeth Brake provides a great summary on the philosophy and history of marriage. But for lawyers, a few things regarding the future of marriage could be interesting:

Keeping promises

Many marriage vows include promises to “love and cherish” the other. But promising to feel love for a person or to make the feeling last is impossible and unenforceable, given the biology and nature of love. More realistic might be vows to treat one’s spouse justly, fairly and deal with them in good faith – but interestingly, this doesn’t seem to be a common marriage vow.

Philosopher Julian Savulescu considers though that neuroenhancements which increase feelings of bonding and emotional attachment (e.g. through oxytocin) might make it easier to keep “love vows”. They are also more likely to be effective, unlike date nights and romantic weekend trips.

But such technologies can be problematic in abusive relationships and pose serious questions about consent and the authenticity of our emotional life.

Temporary marriages

Marriage is a contract that does not expire until death, its legal terms cannot be altered (though people can compromise in practice) and many jurisdictions still make its dissolution costly and contentious. But people change over time: mentally, physically and in terms of preferences, experiences, ambitions, knowledge or desires. Metaphysical questions about personhood aside, the person you are with now is likely not the one you married five, ten or twenty years ago. Depending on your stage in life, your spouse may not be the right partner for you anymore.

Issuing temporary marriage contracts might help: if the spouses are content, they can renew the agreement. Conversely, an expiry date could take the pressure off some relationships that ran their course: instead of costly divorces, temporary marriages could already include arrangements for dealing with any jointly owned property after expiry: a marriage contract and pre-nup rolled into one.

Separating marriage from childcare

Poet Philip Larkin implied that many parents are woefully inept at raising kids to be smart, confident, fair-minded and emotionally mature adults. Arguably, that’s asking too much of any individual couple anyway: it takes a village to raise a child, as the saying goes.

Psychologist Robert Emery considers that couples who won’t divorce “because of the children” potentially do them harm. Children mostly need a stable environment and the feeling that they are loved. Parenting does not require that the parents are married or love each other.

Therefore, philosopher Laurie Shrage proposes legally splitting parental rights and duties from marriage, making them legally and factually separate things. Co-parenting agreements could serve the interests of the children best: they can include, but are not limited to, the biological parents but also step-parents, godparents or other people who exercise de-facto parenting functions. They would also protect the rights of important caregivers to the children, irrespective of marital status or biological relation.

In praise of arranged marriage

Humans have fallen in love since the emergence of our species. Until about two centuries ago, love was not a good enough reason to marry but nowadays it seems it’s the only commonly acceptable ground (in the Western world at least).

But passionate love fades after a few months and rarely lasts longer than two or three years. Due to the biology and psychology of passion, we see the loved one as we want them to be, not as they likely are. Our decision-making is impaired. Important questions are either not asked or unsatisfactory answers accepted, warning signs overlooked or denied, unrealistic hopes indulged. It’s worth asking if a person in such a state of mind should be allowed to sign a marriage contract at all.

If done well and in good faith, a lot of key conflict factors in marriages can be disclosed and discussed upfront in the due diligence process of an arranged marriage:

For instance, the prospective spouses’ motivation for marriage, education, socio-economic background, health, reproductive capacity, views on children, career, household management, lifestyle preferences, financial habits, family, friends and associations, political beliefs, religious views, sexual proclivities… the list can go on.

Given that marriage means a joining of estates and bodies with the view of building a life together, surely it makes sense asking the important practical and philosophical questions from the start and not leaving them to chance and wishful thinking.

Spouses in a love marriage can fall out of love while spouses in an arranged marriage can come to love each other. Love is a great bonus, but legally irrelevant to a marriage.

We commonly say that marriage is a journey of discovery: people discover who their partner really is. But in an arranged marriage people start the journey more informed, with more realistic expectations and can pre-empt or mitigate potential conflicts. Both types of marriage can work out great. But legally speaking, the ‘arranged marriage approach’ sounds preferable, if only to remind us that a degree of diligence should be exercised before entering into important agreements.

The author thanks Ms Joanna Bass for her revision and helpful comments on this article.


Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.