Marriage has been in the news a lot lately. Marriage equality consumed the headlines for months amid a divisive public debate. Now, as the first tranche of marriages take place under the new marriage equality laws, Deputy Prime Minister Barnaby Joyce has split from his wife of 24 years, moving in with his new partner who is expecting their child in April.
Amid speculation about whether and why the DPM's relationship is in the public interest, is a much more interesting and foundational point about the nature of marriage as an institution. I am not canvassing its spiritual elements as a sacrament, but rather its cultural and legal connotations.
Prominent conservative politicians have proclaimed marriage as a form of protection for women. In 2017, Tony Abbott said that marriage 'is something that evolved many centuries ago to protect women and children'. In 2011, Joyce himself addressed a function held by the Australian Christian Lobby, saying, 'We know that the best protection for those girls is that they get themselves into a secure relationship with a loving husband.'
Whatever your views about marriage, its history as a coherent regulated institution at law does not lie in the church. Rather, it lies with the state. Lord Hardwicke's act was passed in 1753 to regularise the solemnisation of marriage in England in response to a property scandal. The act clarified property rights through guidelines to determine spousal, and therefore filial, relationships.
Marriage laws did benefit women who might otherwise be unable to establish their spousal relationship with a man. Their children would at least be recognised as 'legitimate' and thus have standing in society. As for direct protection — married women were not legal persons, they had no right to hold property in their names, and their husband had a right to sex regardless of the woman's consent. Further, while their husband controlled the family's economic means he was never under any legal obligation to provide for his wife or children.
The Married Women's Property Acts in the late 19th century gave married women legal personality and the right to hold property. Laws concerning rape in marriage were slowly introduced over the 20th century. Since the Sex Discrimination Act in 1984, it is no longer lawful to discriminate against women based on their marital status. Consequently, women can now hold on to their jobs once they marry.
These legal reforms, over a century, bring married women up to a basic level of equality with men. Yet entrenched attitudes to women in general, and married women in particular, diminish the real impact of these laws. To suggest that marriage somehow protects women is a gross misrepresentation.
"It is not marriage that protects women. What will protect women is adequate social and economic support to take control of their own lives."
A lot of this rides on the implicit understanding of the roles of wife and husband. Traditional, gender-based roles include an expectation that the wife contributes to child-rearing and homemaking while the husband is the primary breadwinner. Even women in the paid workforce do more housework than men.
Husbands in high pressure, high status jobs are known to rely heavily on their wives' contribution to running their household, and to supporting their career. For politicians like Joyce, the family — managed by their wife largely on her own — is also part of their marketable public persona, contributing to their success. Joyce's estranged wife Natalie Joyce, in a public statement, has confirmed her role as supporting Joyce's career. Further, she says that she has done so at the cost of her own career aspirations.
Where a wife devotes her time to running the household, and to advancing her husband's career, marriage is no protection at all. By contrast, if the marriage ends through death or divorce, or if the husband becomes too ill to work, these women are vulnerable. While undoubtedly such women are highly competent managers with a host of skills, the reality is that their skill set is refined to the personal needs of their own family and spouse. These are unlikely to be recognised in the open job market, leaving such women with few options.
Prime Minister Malcolm Turnbull has, confusingly, defended Barnaby Joyce's actions by pointing out that by joining his new pregnant partner, she will not be a single mother. He ignores the reality, of course, that for all her personal sacrifice for her husband's benefit, Natalie Joyce is now herself a 'single mother'. Being married is no protection at all.
If marriage is no protection for women, what is? As a society we need to consciously step back from our demand that women play the 'wife' role. We need to support women's reproductive labour, to enable them to be educated and to work in fulfilling and well-paid careers. Women need to have full reproductive rights, and access to quality, free (or cost-effective) child care. Women need access to well-paid work and equality of opportunity in the workplace. Women need superannuation at the same level as men.
It is not marriage that protects women. What will protect women is adequate social and economic support to take control of their own lives. What better investment can we make as a society?
Kate Galloway is a legal academic with an interest in social justice.