The State of Marriage- Progress or Decay?

On the surface, 2017 represented a peak in a progressive movement to reform marriage around the world. Marriage and family law – and the social practices from which they stem and to which they contribute – have seemed to become more and more similar across the world over time. And marriage appears more equitable, for people of all genders and sexual orientations, than ever before.

In Germany and Australia, same-sex marriage was finally legalised after years of resistance. Meanwhile, across the Middle East and North Africa, in Tunisia, Jordan and Lebanon, new laws were introduced which meant that rapists could no longer be exonerated upon marrying their victims. And in India, the Supreme Court voted to outlaw the Islamic practice of talaq – unilateral divorces issued by husbands who declare talaq three times, which brought India’s policy on Islamic divorce in line with that in most other countries.

Not least, 2017 saw the crescendo in a long-standing global debate about marital age, which has often focused on the rights of girls. Germany banned marriages involving minors – and also decided not to recognise most underage marriages conducted abroad. The United States, where marriage as young as 10 years old is allowed in some states, has seen a legislative movement and broader social pressure against the practice.

For reformers, these changes to marriage law signified progress, as older norms about heterosexuality and patriarchy gave way to new values. For critics, by contrast, the changes to marriage across the world in 2017 denoted moral decline. Despite the apparent gulf between these critiques, they nonetheless pointed to a common theme: marriage was seen as a marker of civility.

How one married – or dissolved their marriage – denoted one’s status as both civilised and modern. Indeed, recent developments in marriage have been tied to the modern history of imperialism and statehood and the specific understandings of civility associated with each.

That history unfolded over three main points: around 1800, with the Napoleonic wars and the spread of civil law codes across Europe; over the course of the nineteenth century, and culminating around 1900, with the age of empires and the spread of laws and norms through imperial connections; and, over the second half of the twentieth century and the early twenty first, with the rise of new international organisations and social movements and the new language of human rights associated with both.

At the dawn of the nineteenth century, the collision of war, state building and Enlightenment thought drove a boom in the writing of new law codes that placed marriage and the family at their centre. Perhaps most significantly, in 1804, France introduced comprehensive rules on marriage and divorce as part of its civil code, largely as a reaction against the radical changes introduced as a consequence of the revolution a decade earlier.

The French code civil assumed that the family was both monogamous and based on the rule of men; any other family structure was potentially uncivilised. The code and the thinking behind it would have a tremendous impact across Europe and around the world. It was transported throughout the continent and across France’s expanding empire by Napoleon’s troops, and it shaped legal systems elsewhere, such as in Ottoman Egypt.

Over the course of the nineteenth century, similar ideas about marriage continued to spread around the world in large part due to Europe’s expanding empires. And, these ideas were shaped by encounters between imperialists and their subjects which helped to confirm notions about a chasm between civilised and barbaric marital practices.

Earlier observers like Montesquieu had looked around the world in the eighteenth century to decry polygamy and child marriage. By the late nineteenth century, a concerted movement against these practices took shape, as in the British outcry over the 1884 case of the Indian child bride Rukmabai as well as through the efforts of missionaries.

And yet, imperial authorities also argued that colonies would need to allow for local differences in marital practices, through a system known as personal status law, because the various cultures – and especially the various religions – around the world seemed so different that they could not be reconciled.

By the end of the Second World War, many had come to question whether cultural differences should be honoured when it came to marriage and the family even if this meant that human rights might be endangered. The rights of women and children, in particular, took centre stage in these discussions, shaping the wording of the United Nations Declaration of Human Rights of 1948 and subsequent international conventions.

Over the course of the 1970s, as new social movements latched onto the language of human rights to defend their causes, it became increasingly clear that rights to and within marriage and the family would be redefined on a global scale. Accordingly, courts began declaring certain marriage practices void when they seemed to undermine human rights.

This was the case, for example, in December when the European Court of Justice ruled that European countries could choose not to recognise talaq divorces carried out abroad – alongside other ‘private divorces’ that were seen as undermining their own moral codes – even if they had been conducted legally at the time.

By the end of 2017, it seemed that marriage had been made more progressive and equal for many around the world. And yet, the reforms to marriage continue to be shaped by specific notions of civility and modernity that have circulated over the last two hundred years and have been shaped by efforts to build nation states and empires.

These ideas could be found, for example, in both the heteronormative assumptions behind the movement to legalise same-sex marriage and in arguments against the legal recognition within Europe of foreign marital practices like talaq or the marriage of minors. Not least, while marriage seems to have become more progressive than ever before, in some ways, it has become less accessible. As couples increasingly choose not to marry due to difficult financial and social circumstances, to a certain extent, marriage has become the preserve of the privileged.

Julia Moses is Senior Lecturer in Modern History at the University of Sheffield and currently based at the University of Göttingen’s Institute of Sociology as a Marie Curie Fellow, where she leads the EU/Horizon 2020 research project ‘Marriage and Cultural Diversity in the German Empire’ (MARDIV / Grant #707072). She recently published Marriage, Law and Modernity: Global Histories (Bloomsbury, 2017) and is currently completing a book titled Civilizing Marriage: Family, Nation and State in the German Empire. 

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