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