A Critique of Legal Marriage

I’ve been divorced twice, so it might not be a shock that I’m less than thrilled by the institution of marriage — specifically, legal marriage.  Nevertheless, I thought it would be interesting to break it down analytically.  I should begin by saying that I have nothing against two people deciding to see each other exclusively and to commit to this arrangement for perpetuity, to the extent that is possible.  My misgivings are about the layer of legality that cloaks the institution, as normally understood.  This layer involves the signing of a contract that is registered with the government of the relevant state, and it gives both parties a claim to the joint property of the couple; the contract can be dissolved, but at great cost if the decision is unilateral.  Even if the decision is mutual, there is usually one party whose income is greater and who bears a long-term financial penalty for the divorce, and this is especially the case if there are kids in the equation.  This asymmetry will play an important role in the analysis.

So marriage, essentially, is a contract in which two people agree to stay together, one that is costly to dissolve.  The cost of divorce means that if, after the initial glow subsides, two people are just indifferent to staying together, then it is optimal for them to continue the marriage.  In fact, because the cost of divorce is significant, it means that even if the relationship is not working and both parties would prefer to disolve the contract, but if the level of dissatisfaction does not outweigh the cost of divorce, then it is still optimal for the marriage to continue.  Observation 1: legal marriage, because of the costs of divorce, encourages the maintenance of relationships that are not to the mutual advantage of the parties involved.

Working backward, Observation 1 implies that the decision to enter the contract of marriage is a big one indeed, as is the proposal of marriage by one party.  Because the cost of dissolution is so high, marriage has a potentially big downside, so two people would only marry if the upside more than offset this.  In game-theoretic terms, by entering into the marriage contract, two people are sending “costly signals” to each other, and this provides concrete evidence that each person loves and intends to remain bound to the other.  There is something to this, but think about it.  Suppose person A says to person B, in effect, “I love you, and to prove it, I’m willing to get married.”  There are two states of the world.  In one, A sincerely loves B, and in the other, A’s love for B is superficial and will fade over the years.  In the first state, person A will stay with person B forever, regardless of whether a binding contract is signed, so legal marriage doesn’t make a difference.  In the second state, where A’s love is fleeting, it does make a difference:  without the bonds of marriage, A would eventually leave B, but this is much less likely (by Observation 1) if the two legally marry.  So, the only reason B would want A to offer marriage is to bind person A in the event that A’s love does not last.  Seen in this light, legal marriage is actually anti-thetical to the ideal of romantic love that some associate with it.  Observation 2: a marriage proposal is only advantageous if one person wants to bind the other in case latter party would eventually prefer to leave the marriage.

Now, let’s return to the asymmetry noted above.  Consider two people who are married, and suppose person A has a greater income than person B and bears greater cost in the event of dissolution.  This puts A in a worse bargaining position.  Given that A and B are married and have to make at least some joint decisions, either party can conceivable make a demand of the other, but neither party can be pushed to accept something worse than their outside option — which in this case is divorce.  By assumption, person A’s outside option is quite bad, whereas person B’s is relatively much better.  This means that B has the ability to push collective decisions in that party’s preferred direction, while A has only limited ability to do so.  And this means that collective decisions within the marriage will be consistently skewed toward one party’s preferences, leading to an unfair distribution of the benefits of marriage.  Observation 3:  legal marriage not only encourages the maintenance of bad relationships, and not only are its foundations without any romantic merit, but it actually establishes conditions that precipitate bad relationships!

By the way, the marital asymmetry can easily go the other way.  I’ve presented it as above because of my particular experience, but it could certainly be that person A has a large income, while person B has chosen to forego professional training to raise children or maintain the couple’s joint home.  In this case, A may face substantial monetary payments in the event of divorce, but B’s standard of living is likely to suffer more, in which case B’s outside option is worse, and A is better able to dictate  collective decisions within the marriage.

Finally, I have to admit that I just plain don’t like the government asserting (and voters conceding) the power to endorse some relationships as valid or real, while others are somehow inferior. How is this the government’s business?  Imagine that a new social status called, say, “happy camper,” was created and each adult US citizen could register as a happy camper, and imagine that a vast majority of Americans decided it was important to get the official happy camper stamp.  Should I take time out of my day to become, legally, a happy camper?  I don’t think so.  In sum, let’s say I don’t intend to go up to bat a third time.

Having said all that, the political system in the US has created practical incentives to enter into legal marriage, including tax breaks (depending on the parties’ relative incomes), citizenship, health benefits, and death benefits.  These are what economists call “distortions,” which can lead people to make decisions that are sensible given their financial environment but that are ultimately hurtful and are not necessitated by fundamental circumstances.  That’s something to think about later…


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