The question asked is: does one need to have legislation, given the principle of marriage and hence the spirit in which one enters into it? The answer much depends on what one means by the “principle of marriage”. I would define marriage as a close, intimate, relationship that is officially recognised by society, in which two people (preferably one female and one male) love, care and support each other.
Society needs parameters if it is to function and remain healthy, and legislation is the easiest way of setting such boundaries. Legislation, as we discovered in Apartheid South Africa, can set parameters that create an unhealthy and unjust society. However, having no parameters leaves space for chaos. Legislation should protect the rights of the individual, as well as create a healthy space in which inter-societal relationships (including marital relationships) are formed and nurtured. Legislation does not prevent misuse or abuse within relationships, but it does set bench-marks as to appropriate behaviour.
In terms of marriage, ante-nuptial (or prenuptial) agreements are all about assets, not relationship. Hollywood utilises this instrument to ensure the less wealthy partner gains as much (or as little) as possible of the wealthy partner’s assets at breakdown. A more healthy approach is to utilise this instrument to protect the individuals within the relationship from forces outside of the relationship (such as one partner entering into business agreements, that if unsuccessful, may harm the other asset-wise). Couples who cohabit, but don’t “marry” in the eyes of the State or the Church, often draw up similar documents for similar reasons.
Marriage is both a relationship and an institution: as relationship it requires love, caring, support, empathy, selflessness, sacrifice, patience …; as institution it requires legislation.
14 June 2006