The Erosion of Marriage: The Effect of Law on New Zealand’s Foundational Institution.

Angela Burgess. Maxim Institute 2002. [100 pages]

Angela Burgess’ short book describes changes to the institution of marriage in New Zealand and how legislation has accelerated these changes. In less than one hundred pages, her book gives three ‘snapshots’ detailing the nature and role of marriage in 1850, 1950 and today (early 2000’s), as well as an assessment of the impacts made by legislative changes. Readers who are concerned about marriage and family matters will find this book a factual and illuminating read.

In 2013 same-sex marriage was legalised in New Zealand. Many lamented then that the institution of marriage was thereby rendered meaningless, if not destroyed. The Erosion of Marriage was written before same-sex marriage was a live issue (although it is discussed toward the end of the book). However, Burgess shows that the legal uniqueness of the marriage union had already virtually disappeared by the time it was published. This had come about by two significant shifts in the ways laws reinforced and relaxed relationship bonds.

The first shift will be familiar to many readers today. As fewer couples have chosen to marry, other types of relationship have been increasingly formalised under law and been granted the rights and duties of marriage. A prime example is that of de facto relationships. Currently, this relationship is now entitled to particular kinds of employment leave, rights to property after the death of one partner or the end of the relationship, and bear the responsibility to pay child support. These are just a few of the rights and duties that were once unique to the marital relationship. Notably, these are not always at the approval of couples who have chosen not to marry – some of the responsibilities of marriage are imposed on those who have deliberately chosen not to marry in order to avoid them. Civil unions are another example. These were not a reality at the time of publication, but are identified as another kind of relationship which would include all the legal entitlements of a marriage without being an actual marriage. The common and dismissive remark that the only point of difference between a marriage and any other serious relations is “just a piece of paper” is, in the eyes of the law, not too far from the truth.

The second shift is more surprising. Throughout the first section of Burgess’ book, the contemporary reader will be struck by the differences in how marriage worked between 1850 and today. The man and woman who were married became a single legal entity, where they had previously been two (reflecting the biblical idea found in Genesis 2:24). Marital duties were prescribed and legally enforced if either party brought a complaint to the courts: husbands had a duty to financially support his wife and their children, wives were obliged to domestically support their husbands. The couple were expected to live together, and an absent wife or husband could be legally compelled to return to the home. Divorce was extraordinarily difficult and practically impossible for those of modest financial means. Even before de facto relationships, civil unions, same-sex marriage etc, were brought to public consideration, it must be understood that the role and nature of marriage has already diminished. Because of this, the elevation of these other relationships to a par equal to marriage has not been as high as many suppose.

In short, it is not simply that other relationships have been formalised and elevated to the level of marriage. The Erosion of Marriage shows how marriage itself has been eroded in its significance, making it little different to other enduring relationships. It is in light of these changes that the privileged status of marriage has been seen as peculiarly unfair.

Burgess also shows how changes to marriage laws and practises have not only demonstrated change, but also accelerated it. The ease with which a divorce could be obtained as divorce laws relaxed has made divorces more common, which in turn has made marriage a less serious affair to engage in to begin with. Another change, illustrated by a quote from a newspaper column, observes a subtle but significant shift in attitude by the fact that marriage vows are now regularly composed by the couple themselves. The cited columnist writes:

“The old vows were created by society and presented to the couple, signifying the goal of conforming the couple to marriage. The new vows are created by the couple and presented to society, signifying the goal of conforming marriage to the couple. The two approaches reflect strikingly divergent views of marriage and of reality itself” (p. 54).

One can see from these examples how the stature of marriage in society has been diminished. Where marriage was once viewed as foundational to the stability of society – as the older laws testify – now it is viewed as a means to individual happiness and access to legal rights.

The second part of The Erosion of Marriage assesses the changes since 1850 and the time of its publication. Burgess outlines what has survived to the present day (early 2000s), and shows how marriage has been made less stable and enduring than it once was. She also demonstrates how the benefit of marriage is now oriented toward the individuals directly concerned rather than to wider society. Finally, she also discusses the impacts made by secularisation, legal pragmatism and the growing preoccupation on human rights.

The changing nature of the institution of marriage has been one of the most fraught social issues for New Zealand in recent years. Burgess’ short book is an informative and concise resource for those wanting to grapple with this subject. Even though much has changed since 2002, interested readers will not fail to find The Erosion of Marriage useful for mapping out the historical and legal landscape of marriage in Aotearoa.

The Erosion of Marriage is available at Fishpond.co.nz, and was priced at $11.95 on March 10, 2020.

 

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