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Marriage is the primary social and political institution through
which sexual relationships and procreation are legitimized. In
Western society, it is the custodian of reproductive function,
and a fundamental unit of society – like a cell is to a whole
organism. In the classic view, it is a bond established between
a man and woman that is formalized by the state. When two
parties marry, they obtain a marriage license issued by the local
government that transforms their relationship into a state-regulated
civil contract.
Marriage
is another example of the codification of a law of natural selection. The
custom of marriage has been found in almost every human society. Human
infants are very underdeveloped when born, requiring almost two
decades of care to fully mature. The bond between the father
and mother is a response to their baby’s psychological and
economic needs. By forming a stable parental relationship,
the baby’s chances of surviving to a reproductive age are
enhanced. Mothers and fathers who form such bonds are more
likely to have grandchildren, and more of them. As a result,
the genes that stimulate bonding behavior become highly represented
in the population. Marriage is simply a formalization of
this selective, natural force. See, Allport, S., A Natural
History of Parenting, Harmony Books, New York, 1997, Pages
46-51.
Early
twentieth century cases involving marriage described three significant
benefits to American society:
To achieve procreation within the authority of the state (“Lord
Penzance has observed that the procreation of children is one of
the ends of marriage. … I do not hesitate to say that
it is the most important object of matrimony, for without it
the human race itself would perish from the earth.” Turney v. Turney,
113 A. 710, N.J. Ct. Chancery, 1921). Marriage safeguards
the legitimacy of the children produced by the contracting parties,
ensuring that property and other family assets pass unencumbered
through successive generations.
To avoid sin (“the sexes should not associate promiscuously
as prompted by mere animal instinct, but to ‘pair off,’ to
use an expression applied to the birds of the air.” Bishop,
J.P., 1881, quoted in Wadlington, W., Domestic Relations,
2nd Edition, 1990, Page 14). Marriage is an expedient by
which society regulates sexual relations between men and woman,
and justifies sex.
To provide mutual support and a permanent, stable family. A
crucial objective of marriage is to secure the permanence
of the family unit, providing a stable environment in which to
socialize the children. Divorce or annulment of the marital contract was available only
in limited circumstances. Until the 1960’s, a marriage
could be terminated in most states only for specific reasons, not
simply because of the desire of one or both parties to end the
marital relationship. Adultery was a common ground for divorce
in many state statutes. Impotence was another. The
duty to engage in sexual intercourse was considered a central duty
of the marital relationship. Borton, 102 Columbia Law Review 1089,
2002. “Capability of consummation is an implied term
in every marriage contract; and in the case of marriages between
young persons, capacity for lawful sexual indulgence is regarded
of special importance to the happiness of the wedded state and
to the fulfillment of the ends of matrimony, viz., a lawful indulgence
of the passions in order to prevent licentiousness, and the procreation
of children.” Vanden Berg v. Vanden Berg,
197 N.Y.S. 641 (NY, Monroe Cty., 1923). So much so that the
inability to perform sexually was grounds for annulment. An
annulment was the judgment that a marriage was invalid, and was
as if it had never occurred, relieving the parties of support and
other obligations that would have incurred if they had instead
divorced.
The rule permitting divorce if a party were incapable of having
sexual relations – the impotence rule – suggests that
sex was the legal consideration for the marital contract, the material
benefit that induces the contracting parties to enter a contractual
relationship. Under contract law, a promise is not legally
enforceable unless valuable consideration is exchanged between
the parties. Since a marriage could be legally dissolved
when sex was not exchanged between the marital partners, sex served
the same purpose of consideration by providing the mutual benefit
supporting the execution of the marital contract.
What would be the consequence of enforcing the marriage when the
consideration failed, and sexual intercourse was not performed
as promised? For any contract, the purpose of consideration
is to ensure that both parties benefit from the agreement. It
is considered unfair and economically inefficient to enforce a
contract when no mutual benefit has accrued. The words that
begin a typical marriage ceremony reflect the terms of the marital
agreement between the parties: “I, Jane/John, take you John/Jane
to be my wife, to have and to hold from this day forward, for better,
for worse, for richer, for poorer, in sickness and in health, to
love and to cherish till death do us part.” These words
indicate the intent of the parties to live together permanently,
to support each other, and to maintain their relationship even
under adversity. Brinig and Crafton, 23 J. Legal Stud.
869, 1994. If Jane is impotent and unable to provide sex
to John as agreed, why should John fulfill his part of the bargain
by remaining faithful and providing money to Jane? Since
he has received no benefit, it makes sense for him to terminate
the agreement, and find a substitute contract that provides the
promised gain.
If
procreation were so important to marriage, then it would seem that
infertility would be grounds for annulment or divorce, as well. However,
in contrast to impotence, “mere sterility” was not
a sufficient basis in any American state for ending the marital
contract. Borton, 102 Columbia Law Review 1089,
2002. “It seems to us clear, therefore, that it cannot
be held, as a matter of law, that the possession of the organs
necessary to conception are essential to entrance of the marriage
state, so long as there is no impediment to the indulgence of the
passions incident to this state.” Wendel v. Wendel,
(NY App. Div. 1898). Only when a spouse fraudulently concealed
and failed to disclose the condition prior to marriage would a
court terminate the marriage. See, e.g., Williams v.
Williams (NY, Monroe Cty., 1939). According to these
cases, although procreation was the purpose of marriage, there
was no assurance that every couple would succeed in their effort. Bearing
fruit was unnecessary as long as intent and capability were present. Several
judges argued, it was against public policy to deny the privileges
of the marriage relationship to individuals simply because they
were sterile as a result of disease, hereditary, or age (having “passed
the prime of life.”). Wilson v. Wilson, 191 A. 666
(PA, 1937). The risk the one partner would be infertile was
therefore shared equally by the parties to the marital contract,
encouraging even more prudence in the choice of reproductive partners.
Is the failure to grant a divorce on the grounds of infertility
an evolutionary maladaptive rule? Consider it from the viewpoint
of the individuals who are bound by the marriage contract, but
despite their desire and repeated efforts, are unable to conceive
progeny. Continuing the marriage relationship means both
parties loose the opportunity to have biological children and pass
their genes to a successive generation, irrespective of which one
is at fault. What good can this be for the fertile individual
who looses the chance to seed the gene pool? As indicated
in Wilson, the beneficiary is the sterile party who does
not have to face loosing their marital partner upon discovery of
their physical inability to procreate. For the fertile partner,
however, the result is destructive since it binds her to a fruitless
partnership through no fault of her own. The numbers are
not insignificant either. It is estimated that infertility
affects at about 10% of couples of child-bearing age. www.umm.edu/men/infertil.htm. Given
this harsh rule, a spouse confronted with these circumstances,
may well conceal infertility as the reason for dissatisfaction
with the conjugal relationship, and base a divorce proceeding on
another, but statutory, grounds.
Maybe there is another angle to it. Single males without
legitimate access to females are a source of societal conflict. As
long as the relationship provides a sexual outlet for the male,
his aggressive mate-seeking behavior is subdued, making him a more
manageable member of the group. From the community’s
point of view, the “mere sterility” rule could be a
group selection rule that benefits the population as a whole. Unmarried
men are viewed as troublemakers for the wives of married men (e.g.,
Stockard, J.E., Marriage in Culture, Harcourt College
Publishers, 2002, Page 31). When the ratio of men to women
precipitously increased in Eastern Europe, this was described as
a recipe for social turmoil, and even violence. Kirschbaum,
E., Reuters, 26 Dec. 2003.
One of the purposes of marriage is to facilitate the transfer
of property through the family bloodline. Money follows the
genes. Providing economic resources to relatives is an important
strategy to promote the success of an individual organism’s
genes since one’s relatives share many of the same genes. Inheritance
law codifies this principle (see, also, Section 3, Note 3). State
law has elaborate provisions for how property is to be distributed
when a decedent dies without a will – first to surviving
spouse and children, and if none, then, in the following order,
to parents, to brothers and sisters, to nieces and nephews, and
so on. Not only does a fruitless couple’s genetic line
not end with them as long as they have living relatives capable
of procreation, but their failure to produce fruit of the marriage
does not necessarily sever the attachment of the family money to
the family genes. In this light, the “mere sterility” rule
reflects the principle of kin substitution since they possess equivalent
genes to the infertile couple. No one is damaged since the
genes continue to flow through the family gene pool. As a
group strategy, the rule keeps the males happy, and as an individual
strategy, it keeps the money linked with the genes.
But what happens when people bound in an infertile marriage cheat
and commit adultery? The rule favors the female. This
is evolutionarily justifiable since her egg is a scarcer resource
than the male’s sperm, and it is expected that group rules
would place a higher value on it. A child born to a married
woman living with her husband is presumed to be a child of the
marriage. See, Section 3.1. In an otherwise fruitless
marriage, should the fertile partner be a woman, and should that
woman seek extramarital viable sperm, any child born as a result
would be presumed to be the marriage’s legitimate heir. This
permits the female, but not the male, to address her mate’s
infertility disorder by seeking a reproductive partner outside
the marriage, and then bringing her child into the marriage to
reap its benefit. The family money tracks the fertile female’s
genetic jewels, but robs the male of his.
The similarly situated male could father a child by a woman other
than his wife, but the law would preclude him from bringing the
fruits of his labor to the marital unit. He achieves the
objective of reproducing, but fails to keep his economic and genetic
resources together. His money separates from his genes, and
his progeny lose any of its advantages. Unlike the female,
divorce is the only way in which the male in a union with an infertile
partner can pass his wealth on to his offspring.
The American legal system is in the minority as far as the infertility
rule. Of 186 world cultures surveyed, 75% permitted divorce
for sterility reasons (Betzig, L., Current Anthropology,
30(5): 654-676, 1989). Only adultery was higher, with 88%
of the societies describing it as permissible grounds for conjugal
dissolution. The majority was pre-industrial, but this same
trend appeared in modern societies, as well. Several of the
cultures practiced polygyny as an alternative, when divorce was
prohibited or unacceptable. For instance, in pre-industrial
Chinese society, if a wife did not produce a son to maintain patrilineal
continuity, a wealthy man might take on a second wife to bear the
male heir (Stockard, J.E., Marriage in Culture, Harcourt
College Publishers, 2002, Page 53).
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