My Blog

My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.

Monday, February 9, 2015

Love and Marriage ?


Are Europeans dying out as Vladimir Putin suggests and is our headlong rush to oblivion demonstrated by our near consensus endorsement of same sex marriage?  Putin concludes that it is, and accordingly, with a rush of logic to the brain, justifies Russia’s homophobic legislation as the response of a “traditional” society or people with “traditional”, even religious moral values, honed over millennia.  Russia, he says, is entitled to its traditions etc., etc.  Are you as surprised by this?  The Russian leader while not a man noted or associated with religious conviction in this part of the world, did, it seems have a devotedly religious mother.  When reflecting on this, however, it is worth noting that communism as practised in Russia, even in its heyday, was as homophobic as you can get.  “Homosexuality is an imperialist plot” one of my student union comrades from my union days confidently informed me years ago when challenged to explain Russia’s record on homosexuality.  Accordingly, the Russian line has not really changed at all, they have just put it into new clothes - and that is so often the case. 
Readers of my blog will know that I have no difficulty with same sex marriage.  Why ascribe a new institution, civil partnership, as if LGBTs* were a third sex?  It seems that others are now catching up with that notion.  And when we sanction Marriage for same sex couples, as we seem destined to do, will civil partnership still remain on the books as some kind of three quarters option only available to gay couples?  Returning to my blog and paraphrasing myself, why would anyone or any society be threatened by the committed declared love of any couple, gay or otherwise?  Clearly, Russia is!  It is of interest that Russia apparently sees marriage as an institution designed for the procreation of children which is a very conservative, largely religious perspective.  Since that is the prism by which marriage is to be judged, Russia would decidedly have enormous difficulty with endorsing same sex marriage which does not prima facie lead to procreation.  But is that what marriage is, an institution simply designed for the procreation of children?
The failure to procreate has never been an acceptable reason in Irish law to have a marriage declared null and void. There are other reasons to have a marriage declared null and void but the unfortunate and/or accidental failure to procreate is not one of them.  It may be an underlying reason for a divorce but the spouse seeking the divorce will still have the usual marital obligations arising out of such an application which will include division of property and ongoing support if that is considered appropriate.  A married couple is a family is Irish law and not simply a couple with children. 
The declining rates of marriage, and the rising rates of divorce, are something of great concern to many people at the moment, particularly those of a religious or conservative caste of mind.  Commentators tell us that marriage rates are falling alarmingly and it is only a matter of time before marriage will be dead as the proverbial Dodo.  You would have to wonder then why LGBTs are campaigning for the right to marry when so many Heterosexuals are moving rapidly away, we are told, from this tradition?  Is it a case of – we want to be able to choose it because it is our right and we want that choice even though we might never choose it as such?  Are there significant numbers of LGBT people who could not care less about marriage and the right to marry and are remaining silent? Let me say that I completely understand the idea of wanting choices even if you personally don’t agree with those particular choices.  I passed away much of my youth in merry conflict with various powers around the politics of choices for various kinds for women, most of which I would never have made for myself.  However, we have to ask if it is true that heterosexual people are moving away from marriage in their droves and whether or not marriage is in fact, a dying institution? A form of marriage exists in every country and every society that we have ever known or currently exists on the planet.  Over the centuries marriage has changed dramatically and it has adapted to societal shifts of an extreme nature between one century and another.  It has also embraced various customs from one continent to another and yet it survives. Perhaps the institution is only in a state of flux responding to vast cultural changes and it will, once more, adapt?
Despite their rising divorce rates, now standing at about 50%, the US has always seemed to me to be a resoundingly pro-marriage culture.  Forty odd years ago, at a time when European youngsters of a progressive bent were opting to live together, kids in the US got married.  Cohabitation never seemed to be an option for all but a small percentage.  While Americans accepted divorce as part of their culture and had few moral issues with it, they found cohabitation immoral and few accepted it.  In the last two decades this seems to have changed dramatically.  In 2010 American married couples made up 48% of all American households.  Even if you factor in increased life expectancy and how that might impact on single households where a spouse is deceased and immigrants who tend as a rule to be young and single, this statistic reflects a huge cultural change in the US.  By contrast in the 1950s 78% of households were married couples. I, for one, have absolutely no wish to return to the stifling morality of the 1950s, a time of unbridled discrimination against women however this sea change still bears scrutiny.
Over the centuries marriage in our own culture has had to adapt from being an institution that was entirely pro man to one allowing of nearly equal rights for women.  It has had to adapt from being about family arrangements, to being bride and groom centred.  It has adapted from being almost entirely religious to having a large civil and legal component, and from being an institution where the roles of each partner were tightly structured on strict gender guidelines to being one where no such structures exist except by choice.  Where once young people had little or no say as to who they married and when, they now freely undertake to marry partners of their choice.  Not so long ago a woman’s economic security was dependent on being married.  Now women are capable of  economic independence for the most part, if not entirely as yet. Once the family of the bride paid almost entirely for the wedding festivities, now it is commonplace for the couple to finance their own wedding and so on.  Indeed in almost every country and in every age, marriage has proved to be a very durable and adaptable institution.  In our time and in our culture, we place huge significance on the freedom that people have to choose their own partners and to marry or not.  We consider it almost incomprehensible that people should be coerced or manipulated in any way into this institution and we are absolutely and rightly horrified at the idea of any force being involved.  However, it is also true that families and friends contrive and connive to ensure that people meet one another and even without that, our pool of potential partners for the most part is naturally circumscribed by our location, class background, educational and job opportunities.  And not only do families and friends manoeuvre the agenda of freedom when it comes to marriage partners, they actively encourage and conspire to pressure their relatives of a certain age into marriage.  And so, I am not entirely sure how broad sweeping our freedom of choice is in reality?  We also are firmly of the view that couples who marry should be able to do so while not conforming to gender specific roles. Again I think that the reality of this and the theory may not be as close together as we would assume at first glance.  How non-gender specific the roles played by men and women are in the marriage will often come down to how the husband in particular was raised by his own family, how his parents’ marriage was played out in front of him as a child and how strong the wife is in her resolve to retain her independence often in the teeth of the husband’s decided opposition and indeed, the opposition of his family, relatives and friends. This situation will be tested at its strongest when the first child is born or if one party is asked to move to another location as part of his or her career.  In my experience these things test out the reality of gender neutrality and generally are played out in favour of the husband unless the woman was always the serious earner of the couple from day one.  And so while marriage as an institution has apparently adapted to huge changes in our cultural approach to marriage, it may be that on examination those changes are not as seismic as they appear on the surface. A far greater change, both for good and ill may well be the move away from extended family situations into nuclear family structures and furthermore, the move away from rural communities into large urban structures. These changes have been ongoing for the past two to three centuries. 
Like many social issues, discussion on marriage tends to reflect the religious and political standpoints of those who are doing the discussing.  Many feel that marriage is threatened by feminism and by that they mean career minded, economically independent professional women.  At first glance, it would seem a reasonable assumption that women with those qualities were unlikely to orientate themselves to marriage.   However, career minded men would invariably marry so why would women be any different?  Human being seek love and companionship.  Such a woman would be unlikely to define herself by whether she was married or not and she would hardly seek marriage for financial security but is that any reason to assume that marriage would hold no attraction for her? Is that all marriage holds for women, status and economic security? A woman might just as readily seek love and companionship for exactly the same reasons that a man would to settle down and establish a secure base.  However, if you have two professional, career orientated people marrying each other does this not inevitably lead to the sort of clashes that give rise to divorce?  Career women are often perceived as threatening to men.  Implicit in the idea that professional economically independent women are not marriage material, is their perceived lack of interest in the traditional roles of marriage i.e., home-maker and child minder. People making these arguments tend to have very gender specific roles in mind augmented very often by a limited view of women.  One of the most interesting pieces of US based research that I have come across however, shows that while marriage rates are falling generally, high earning females, defined as anyone earning more than €100K per annum, have increased rates of marriage rising from 58% in 1980 to 64% in 2009.  In addition, divorces rates are low comparatively for this group.  In summary college educated women and men marry later but they seem to have better staying power when they do commit to marriage.  Contrary to assumptions, college educated, career orientated men and women are bucking the trend. This deserves closer examination.
One of the greatest challenges faced in modern marriage in my view, is that of unrealistic expectations.  This seems to be an affliction which women are more prone to than men, particularly young women.  Despite all the advances made by women, a lot of them are still invested in the myth of true romance and happy ever after.  In fairness to girls and women these fairy stories are pushed on them relentlessly.  Love songs of the most syrupy quality are everywhere.  Romantic comedies, romance movies are usually grounded on wildly unrealistic premises which is all well and good if we understand them on those terms.  Hallmark created festivals such as Valentine’s Day and Christmas to a large extent push romance, glitter and fairy stories in the most unmerciful fashion because the buy in from young women has enormous monetary spinoffs for huge industries.  It is a continual fest of never ending, vomit inducing bilge.  A woman with a career, educated, real economic clout and an independent caste of mind is unlikely to swallow the fairy story and being a bit older probably knows what she is doing when she commits to something.  She will not get married until she is ready and, barring unfortunate accidents, will only have children when she is in an economic and satisfactory place in her career to do so.  I believe that this may account for the surprising statistics attributable to such women as shown above.   All too frequently women who are dissatisfied with their lives for whatever reason will invest their happiness solely in their husband.  Another person can never make you happy and it is an unfair burden to place on one person.   Marriages, good and bad, can certainly contribute to your happiness or unhappiness but they are a component part of a full life, not the whole of it.  In short professional women are less likely to have unrealistic expectations of marriage.  
Another comment one often hears or reads is that cohabitation is the death of marriage.  Cohabitation numbers are certainly on the rise.  As a practice it is far more acceptable now than it was 50 years ago.  Does this mean that cohabitation is the new marriage so to speak?  The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 is a somewhat belated recognition of the reality of cohabitation as a common practice.   My opposition to this piece of legislation in so far as it pertains to cohabitation which I have argued elsewhere, is neither here nor there, as the act is now in being.  Two thirds of couples who marry today are already living together which would suggest that cohabitation as such is not replacing marriage rather it is being viewed by couples as a step on the way to marriage.  In addition, since 1996, research would indicate that cohabitation before marriage is not associated with an increased risk of divorce.   Perhaps the changes in sexual mores in the past 50 years whereby the sexual availability of a woman to a man is not perceived by that man as mitigating against having love and respect for her, serves to explain this change?  Intimate sexual relationships are now placed it would seem on a more equal footing between men and women and one has to be grateful for that!
Arising out of the passing of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, it could be suggested that since cohabitation is now subject to the long arm of the law it will surely replace marriage.  In fact that argument makes no sense since those not wishing to marry and opting for cohabitation would hardly have wanted to come under the law. I have no doubt that for many of them even now it will come as an unwelcome surprise if and when they discover that they have whether they like it or not. This is the problem with the legislation in fact. It gives rights to people who were not looking for them and contracted on a different basis.  In past centuries and up to the latter part of the last century, marriage, as an institution, was blatantly unfair to women.  Women had no right to hold property independently when they married, in the event of a breakdown of the relationship they seldom had any rights to their children, within the marriage itself they had no physical integrity and often were unable to hold down employment as married women to name but some of the indignities they suffered.  As the 20th Century feminist movement gained momentum, it focused on marriage to a great extent and accordingly, as a result of sustained pressure and economic changes, the position of women shifted dramatically within marriage.  From the point of view of dissolution which is generally the yardstick by which rights in this area are determined, marriage is a much more legally and financially secure institution now for women than cohabitation even allowing for the above named act.  Cohabitation viewed from this perspective does not present as an attractive alternative to marriage.  For this reason it is very unlikely that one will replace the other. 
Conservatives and those of a religious demeanour frequently assert that marriage provides a secure base for the raising of children, far more secure than any of the alternatives.  If children’s wellbeing is dependent on their being raised within a marriage, then divorce would have to be the worst possible outcome for children.  It is certainly true to say that the public nature of a marriage and the legal intricacies make it a stronger commitment and a tie than the alternatives.  However, an unhappy marriage is surely not going to be more secure for a child than raising children in a happy cohabitation.  I do not believe that divorce is the worst possible outcome for children.  I am fully convinced from my reading and it appears that the weight of research is with me,  that for children being in the middle of ongoing conflict between their parents whether within marriage or outside it, is the worst possible outcome for them. When conservatives argue in this context that marriage is the best environment for the raising of children, we can reasonably suppose that is so because the children are raised by a man and a woman since such people often oppose same sex marriage and the adoption of children by gay people.  If, as I read recently, all children deserve to be raised by a father and a mother then what do we say about the whole generations of children raised by single parents arising out of wars for the first half of the last century – were they all dysfunctional as a result?   Children, in my opinion, will thrive if raised by secure, mature, loving people whether those people are married or not, heterosexual or gay, single or in a relationship. 
Will marriage in the West survive the 21st Century?  As an institution marriage has changed dramatically over the years.  When we think about it now, we tend to only think about it in terms of recent history i.e., over the last 100 years or so.  Marriage viewed over centuries and examined globally, yields a very different picture and one which leads to the likely conclusion that marriage as an institution has shown itself very capable of adaptation and rumours of its demise are greatly exaggerated.
Marriage, at its best, is the committed, long term, relationship of a loving supportive couple who agree to build a life together and to stick together through all the ups and downs implicit in that.  I do think it can be distinguished from cohabitation in most cases by the strength and nature of that commitment.  In so far as marriage as an institution is at the moment going through a rough patch seen from one perspective and being redefined seen from another, I think that commitment is the key word to interpreting what is happening. The breakdown rate for first time cohabitees after 5 years and the breakdown rate for first marriages after 5 years is 49% to 20% respectively and after 10 years 62% and 33% respectively.   It seems to me that commitment and modern life are an ill fit or at least a difficult combination to make work.  Modern history has seen the growth of cities, in a hitherto unheard of manner, and all that means for our ways of living as compared to previous generations. There are more middle class, travelled and educated people now in the West than ever before in our history.  Large numbers of women have real economic choice in a way never before seen.  We live longer than previous generations and the figures for death in childbirth are very low.  All this impacts on every aspect of our lives and of course, marriage is part of that and is, therefore, affected.  Looking at life span alone, marriages now can potentially last far longer than in previous centuries.  Looking at life style alone, the nuclear family is now entirely the norm as opposed to the extended family.  This changes the nature of the true meaning of life-long commitment as it was previously understood.
I read recently that our world today is drunk on comfort – the ultimate ‘because I am worth it’ generation.  Uniquely from a historical perspective these circumstances have pertained for several generations in the West.   The writer of that article was strongly of the view that our seeming inability to commit was largely because we could not put up with any discomfort.  There is no such thing as a relationship, or indeed a life, into which no discomfort ever comes.  For most of recorded history, we have struggled to survive, poverty and diseases were frequent, life spans often short and in addition we had wars, famines and plagues. Existence was often uncomfortable and few if any would have expected otherwise.  That being the norm, we were conditioned to put up with things with more endurance and fortitude.  I am not advocating a return to pestilence and plague nor am I advocating the “you have made your bed” school of approach to marriage.    There is a difference between intelligent, loving, perseverance in the face of adversity and the kind of despair that must have been the lot of many living in relationships which were deeply unhappy and often abusive in the past.  Human history being what it is our present degree of comfort is likely to be transient, something will arise to make us shift perspective.   As is so often the case when faced with cataclysmic events our world view changes and the truly important parts of our lives, what we value, will once more become the object of our focus.  If the current changing patterns around marriage and intimate relationships force us to reflect as a society on what we mean by love in all its forms then our current seeming confusion and uncertainty will have been worth it but sadly I think that society as a whole only shifts in response to much larger events than gentle declines.  We have seen a little bit of that in recent years in Ireland.  Having very little money to spend has brought about some very welcome changes in our values.    One small example in the context of marriage is the number of couples who now exchange their vows in a low key tasteful manner as opposed to the vulgar excesses of the boom times.  And of course, fashion responds to circumstance, and the more trendy weddings are now low key intimate affairs. 

For my part, I believe that to love another human being through thick and thin, to honour them and that love and to commit with every fibre of your being is the greatest endeavour to which any of us can aspire.  However, I also believe in the extraordinary nobility of all kinds of love, the love of children for their parents and parents for their children, one adult for another whether of the same sex or opposite sex, the love of friends and so on.  All kinds of love requires commitment,   perseverance and the strength to abide and all deserve to be celebrated and honoured.  For almost 50 years now we have behaved as if there was only one kind of love, sexual love and we have frequently ridiculed and derided all other kinds of love.  Our obsession with sexuality has meant that platonic friendships between men and women have become nearly impossible.  Very young teenagers are exposed to sexuality and forced into the dating game at ludicrously young ages.  Our obsession with sexuality impoverishes our existence, in that the nobility and sacrifice implicit in any kind of real love is unexamined by all but philosophers and the nature of friendship undermined.  It may be too early to forecast green shoots where this is concerned but I was greatly heartened to view the movie Maleficent recently (quite by accident, I hasten to add lest you imagine I am in my dotage) and I was glad I did, since the movie completely rubbished the idea of love as being possible with a prince who had known the princess for 5 minutes and therefore, “true loves’ kiss” was the love, sorrow and regret of the bad fairy, Maleficent for what she had done in cursing the princess as a baby but now knowing her as a person and the expression of that love and sorrow in a kiss.    Speaking about this to my daughter she stated that Frozen did something similar – is it possible there is a trend?