Two very different but significant decisions were made in Australia last week, which have a bearing on the nature of marriage. Firstly on 30 November the High Court overturned ‘spousal privilege’, the common law right of a spouse (in this and virtually every case, the wife) to refuse to give evidence against her husband. Secondly the Australian Labor Party voted on 3 December to include same sex marriage in its federal platform (while reserving a conscience vote that will ensure nothing actually changes). Throw in a third – Andrew Fraser’s private member’s bill to legalise civil unions for same sex couples in Queensland on 1 December – and something interesting seems to be going on.
Maybe I’m not looking in the right places, but so far I haven’t seen any analysis that links the High Court decision to the issue of same sex marriage, and changing attitudes towards single sex unions in the general community, but taken together they seem to say something about the practice of marriage itself.
Because despite what social conservatives may think, the idea of marriage has indeed changed over time. We don’t need to go into the wilder reaches of polygamy, ancient or modern, to see these changes at work.
According to William Blackstone, in Commentaries on the Laws of England (1765), ‘By marriage, the husband and wife are one person in law.’ A married woman, according to this view, had no independent existence. Her property became her husband’s, she couldn’t sign a contract (which made it hard to operate in business), she had no right to decide how her children were educated, or what religion they would observe. Needless to say, there was no such thing as rape within marriage, and although he prevaricates a bit, Blackstone thought that ‘moderate correction…by domestic chastisement’ was okay too. Divorce was virtually impossible – though wife selling existed as a rough and ready alternative amongst the lower orders.
I doubt if any of my gay friends want to participate in this sort of marriage – nor any of my straight ones either. The idea that a wife couldn’t give evidence against her husband comes from this worldview in which she had no separate legal existence from her husband, rather than because intimidation might render her evidence unreliable (though no doubt sometimes this is the case).
Things gradually improved for wives during the 19th century. In early Australia, there were informal adjustments to allow the free wife of a convict man to take over the legal ‘personhood’ that would usually be associated with the husband. Britain and the Australian colonies brought in divorce laws in the 1850s, and in the 1880s they changed the law to give property rights to married women. But a woman still lot her nationality if she married a foreigner – as many Australian-born women married to German immigrants found out during World War I, when they were classified as enemy aliens along with their husbands.
We have moved beyond marital inequality, sanctioned by the church or the state. We don’t sell wives these days, or pay a bride price or choose them on the size of their dowries, and if a marriage settlement is drawn up, as it would have been for Elizabeth Bennet and Mr Darcy, we call it a pre-nup, and think it rather funky.
Men and women have lived together in many permutations and combinations since the beginning of time, and the institution of marriage is a more mutable institution than people realise. Both the High Court decision on spousal evidence and the move towards same sex marriage reflect this shift towards a greater autonomy of each individual within the partnership. This may make for occasional difficulties at the breakfast table, if you want to chat about how cleverly you cheated the Tax Office, but in general, it seems a good thing.
We still have a way to go. I await with interest the opinion of the High Court when the first gay company director goes bankrupt, and his creditors find that he has transferred all his assets to his husband.
This post first appeared on ABC’s The Drum website here on 9 December 2011.