Through a Glass Darkly? – Marital History, Law and Culture and the Reality of Adult Relationships
In ancient times marriage facilitated procreation and clear bloodlines: in Roman, early Christian and medieval society, it created dynasties and accumulated property for kings and nobles. Its ecclesiastical origins strengthened the Church’s grip on politics and power while Christendom fought the pagan Vikings and Muslim Moors and led crusades to protect the Holy Land. This relentless Church stranglehold persisted during the distractions of the Hundred Years War and the Wars of the Roses, forging an indestructible link between Church and marriage that required legitimate heirs born in lawful wedlock.
This lasted until WWII with only occasional exceptions, the 19th and 20th centuries finally reducing the role of marriage to a walk-on part while developing alternative adult legal relationships; thus its eventual use only a framework for protecting family assets and fair division when all such relationships eventually fall apart – only cohabitation misses out in today’s roll-call of complex sequential monogamies, even polygamy and intersex are currently getting more priority.
Marriage does need reform; but how should legislation craft adult 21st century relationship law? And what is the role of history in this analysis? Do we really need all the distinct statutes? Or should they just follow the unified equality and diversity legislation of 2010? Maine identified the historical and jurisprudential order of culture and law. If nothing is done, will 2100 only portend ‘apres nous le deluge’?
Dr Frances Burton is a Senior Lecturer in Law at Buckingham University who has published widely in Family Law and Property throughout a lengthy career as an academic-practitioner – as a Chancery Bar practitioner with Lincolns Inn Chambers, and an academic in posts in England & Wales and Europe, her main research interests being marriage and alternative adult relationships, comparative law, dispute resolution and the impact of procedure on Family Justice.
Recent research has been into Low Value Financial Applications in the Family Court for the Centre for Child and Family Law Reform at City University of London (report published on their website, July 2020), and a Surrogacy chapter in ‘Same-Sex Relationships, Law and Social Change with Northumbria University’s Gender Research Group (published by Routledge, Taylor & Francis, January 2020). Her current project is updating Comparative Cohabitation Rights research in jurisdictions where these are promoted, and a paper for Northumbria’s conference on the Historic, Legal and Cultural Perspectives on the Development of Marital Law.