The Defense of Default Marriage Entitlements and Epicycles

The Defense of Default Marriage Entitlements and Epicycles

(Note: A number of references herein attempt to use "feminism" to justify their views on marriage entitlements.  It is worth noting that many women calling themselves feminists regard marriage and marriage entitlements as part of a past era when women were not considered competent, responsible, and rational enough to make their own decisions. I agree with the feminists that believe that women are competent, responsible, and rational enough to make their own decisions.)

This note will deal mostly with current marriage laws and their inconsistencies with women as full-fledged, responsible, and rational adults from one scientist's viewpoint (i.e., mine).  I will speculate occasionally about how the current situation arose historically,  but have not studied the history in detail. Thus, the comments and speculations about the past may be wrong in some instances, but the present day inconsistencies exist whether or not the speculations about the past are valid. In what follows, it is assumed that the man is the more moneyed spouse.

Before about 1920 (in the USA anyway) a prevailing prejudice was that women were too emotional and not rational enough to have the same rights and obligations as men.  Women were denied many basic rights such as the right to vote, and in many, perhaps most, circumstances the ability to sign contracts solely on the basis of their signature alone. The prevailing view seemed to be that either fathers or husbands should make important decisions for women. Upon marriage, men had an entitlement to sex and women had an entitlement to support.  Because abortion was illegal and relatively rare, the man's sexual entitlement usually guaranteed children.  Marriage was a lifetime commitment unless one spouse could be faulted for breaking his/her marriage vows.  Divorce was relatively rare. If a man broke his vows, divorce could ensue with him at fault. Her obligation to provide his sexual entitlement was terminated by divorce, but his obligation to provide her financial entitlement to support continued because she was not at fault. On the other hand, if she broke her vows, divorce could ensue with her at fault. His obligation to provide her a financial entitlement was (largely) terminated when she was at fault and she got very little, if anything. Call this the "entitlement/obligation" marital fairness theory.

Around the mid 1970's a man's entitlement to sex was terminated (a very good idea) but a woman's entitlement to support continued (a very bad idea). This was called "no fault divorce." Rather than starting with a blank slate and expecting legally equal adult partners to negotiate a suitable marriage contract, the law kept the old support entitlements despite a radically different marriage and divorce environment. One could understand if women who got married before the change were "grandfathered" (grandmothered?) into support entitlements in divorce, but the new laws also applied to new marriages. That is, women married after the laws changed had marital entitlements but no marital obligations. The new laws generally still entitled divorced women to live in "the  style that they had become accustomed to," otherwise known as the "marital lifestyle." Absolved of any responsibility to show that their husband was at fault for the divorce, women could freely divorce and yet still retain their marital lifestyle entitlement.  Not surprisingly, with their "marital lifestyle" guaranteed after divorce, many women decided that divorce was a good option and the divorce rate skyrocketed. One should not blame the women for choosing to divorce; these women responded rationally to the new laws and the incentives they contained. This is a completely rational response to the new incentives.  Men had no new incentive to divorce, so the divorce rate increase was largely due to women.

With the marriage and divorce incentives changed, men modified their behavior in line with the new incentives. This was more difficult for men because the default (no-fault) divorce terms were now heavily biased in favor of women. No doubt it was nice for women to divorce men at will and still be entitled to the marital lifestyle, but it was, of course, men who had to supply this entitlement. At least before the no-fault divorce laws, a man who had kept his vows did not need to supply an entitlement to a woman that broke her vows and divorced him.

Rather than starting from a blank slate and negotiating a marriage contract, some women very much wanted to keep their default entitlements. These default entitlements to women violate the principle of equality between men and women. How to make default entitlements consistent with equality so that a marriage contract does not start as a blank slate between equal parties?

From a scientific viewpoint, this is very reminiscent of the situation in astronomy. Before Copernicus (1473–1543) the prevailing astronomical principle was that Earth was the center of the universe ( Ptolemy's geocentric system)  and heavenly bodies had perfect circular motions about the Earth. The Ptolemaic system (https://www.britannica.com/topic/Ptolemaic-system) was inconsistent with the motions of some of the heavenly bodies, most notably the planets. To justify the "perfect circular motions" idea with the actual motion of the planets, epicycles were introduced. When superimposing epicycles on top of the "perfect circular motions" still did not quite match the actual motion? Why, just add epicycles to the epicycles!

Scientists know that even a totally erroneous theory can match reality if enough specialized "tweaks" are invoked to adjust the theory every time the theory would be inconsistent with reality and/or other well-established and verified principles. If one adds enough "epicycles", one can make almost any theory work. Even though Copernicus' heliocentric theory explained the motion of the planets vastly better than the Ptolemaic system, the legal authority of the time (The Catholic Church) just had to keep Earth as the center of the universe. In order to defend its ideological view, the Church was unwilling to accept Copernicus' heliocentric theory. Indeed, as Galileo would find out, the ideologues of the day considered it heresy to challenge the Church's viewpoint.

A similar thing has happened in marriage. The old marriage entitlement theory was based on women being less competent than men and incapable of negotiating for themselves. Despite overwhelming evidence that women are every bit as competent and capable as men, today's ideologues support these entitlements as if they were sacred. Any attempt to modify or even question these entitlements is treated almost as heresy by today's legal ideologues. I have commented before on how some  ideologues disparage even the questioning of these entitlements:

https://smolyhokes.blogspot.com/2017/08/defending-gold-diggers.html
https://smolyhokes.blogspot.com/2017/08/secondary-comments-on-defending-gold.html
https://smolyhokes.blogspot.com/2016/10/comments-on-ten-things-i-hate-about_29.html

First Epicycle

With men and women as equal and responsible adults, any marriage contract could be negotiated between them. The first modification of "equality" was to start with marriage contracts that still provided default (non-negotiated) entitlements to women.

Second Epicycle

But, men could still refuse to get married without a prenuptial agreement. So, the second modification tried to defeat prenuptial agreements if the woman signed a contract that she claimed she did not understand. As an adult, it is presumably her responsibility to understand the contract and seek legal advice?  Nope, this became the man's responsibility to make sure that she had legal advice. Her signature, though nominally an adult signature, was basically worthless to him. She could sign other binding contracts as an adult (e.g. real estate, business, and employment contracts) without legal advice and she would be bound by those contracts. Prenuptial contracts were special, her signature was as meaningless as a child's signature if she did not have legal advice.

Third Epicycle

If a man ensures that an adult woman has her own legal counsel so that she understands the prenuptial contract, the next legal shenanigan is to claim that the contract should not be enforced because it is "unfair." Often, this simply means that the distribution of assets is "lopsided" under the prenuptial contract. Never mind that the distribution of assets was "lopsided" when the couple married and she agreed to the contract's terms which let the man preserve his assets. Whether it was "fair" or not is subjective and it apparently was fair enough that (with legal counsel) she signed the contract. In some jurisdictions the court can decide not to enforce the contract because it is "unfair" at the time the divorce occurs because of "changed circumstances." The court seems to be requiring that the man predict the future? To justify breaking the prenup, lawyers give lists of "what if" scenarios for "changed circumstances." The scenarios seem to fall under just a few broad categories. The woman and/or her lawyer could have negotiated these scenarios, but there would have to be agreement on what was "fair." The trouble is that a man can reject anything that he thinks is unfair to him and simply refuse to get married under those circumstances. For large numbers of women and/or their lawyers, negotiation seems to be anathema and they would rather not negotiate what should happen in "changed circumstances" and hope that the court is sympathetic even when the "changed circumstances" are common occurrences that easily can be specified and negotiated.

Fourth Epicycle

Although negotiation would seem like the fairest way to arrive at contractual obligations in marriage (as negotiation is for contracts outside of marriage), some lawyers insist that negotiation is somehow "unfair" to women. Negotiation is apparently unfair because of "power" inequalities? (https://www.researchgate.net/publication/308752412_Prenuptial_Agreements_and_the_Presumption_of_Free_Choice_Issues_of_Power_in_Theory_and_Practice) Note that prenuptial contracts are not signed under anything that would be considered "under duress" in non-prenuptial contracts. Nobody is going to suffer dire consequences (e.g. signing a contract at gunpoint) if the contract is not signed. The most "dire" consequence of not signing an "unfair" prenuptial agreement is not getting married to someone that has a very different value system and concept of fairness. (This would seem a win-win situation in which both parties avoid a future with someone that has a very different concept of fairness.)  Indeed, the only real consequence (of not signing) is that the parties involved are in the exact same legal circumstances as when the negotiation started.  It defies logic and common sense that unchanged circumstances could possibly be an unfair result of negotiation. Furthermore, if the unchanged circumstances are somehow unfair, the unfairness cannot be because of the negotiation, because the circumstances existed prior to the negotiation.

It must take specialized legal theories that defy the logic that ordinary educated folks learned in their high school and college courses to justify why negotiations are unfair. The presumption of free choice? Either party can refuse to sign a prenup that she/he considers unfair. There must be some wonderful legal legerdemain logic to assert that the parties do not have "free choice."

So some lawyers want agreed to and duly signed prenuptial contracts voided due to concerns about power and free choice?  The alternative to implementing terms of a negotiated contract is imposing non-negotiated contract terms using  the power of the government. Imposed contracts would seem to be the epitome of using power to prevent people from exercising free choice in the contracts that they enter into. Doesn't this seem a little "ass backwards" considering the power and free choice comments leveled against negotiated contracts?

Some of the attacks on prenuptial contracts actually resort to asserting that women are irrational when it comes to marriage and their judgment cannot be trusted. Instead, it is apparently up to the government to protect women from women's irrationality. According to "Feminist Relational Contract Theory," marriage contracts are questionable when there are issues of "bounded rationality."
( Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and Practice, by Sharon Thompson page 167) 

"Bounded rationality affects the parties' ability to think clearly about protecting themselves financially on divorce in the early stages of a relationship, which stages are often marked by altruism and commitment."

Fifth Epicycle

When prenuptial contracts are not enforced, the only reasonable option for men that consider the default marriage entitlements that they must provide outrageous, is not to get married. But even this option is under attack in many places and has been effectively eliminated in British Columbia.

Lest one believe that "free choice" is meaningful when it does not suit the marriage entitlement ideology, consider that some women want to force providing  marriage entitlement responsibilities upon men even if the men do not marry and publicly eschew marriage.



(See “A Feminist Proposal to Bring Back Common Law Marriage” by Cynthia Grant Bowman. http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1137&context=facpub )

( See:http://www.cbc.ca/news/canada/british-columbia/common-law-couples-as-good-as-married-in-b-c-1.1413551 )

Far from "free choice," recent entitlement ideologues use the ultimate in power, government power, to force their entitlement ideology upon men. For more comments on this see:

https://smolyhokes.blogspot.com/2015/11/no-means-no-except-when-man-says-no.html

Repeating a previous comment that is relevant here:
The old marriage entitlement theory was based on women being less competent than men and incapable of negotiating for themselves. Despite overwhelming evidence that women are every bit as competent and capable as men, today's ideologues support these entitlements as if they were sacred. Any attempt to modify or even question these entitlements is treated almost as heresy by today's legal ideologues.
The entitlement ideologues are back to asserting that women are not rational and competent enough to make decisions for themselves because of "bounded rationality."

Summary 

The real "principle" of the marriage entitlement ideology is :
Whenever men figure out how to protect themselves under the current set of rules, the rules need to be changed to block if possible, or at a  minimum impede, that protection.