There is a curious dichotomy in American public life today.  On the one hand, those who are able — and in many ways encouraged — to marry are in increasing numbers choosing not to do so.  Overall, the U.S. marriage rate has fallen nearly 50 percent since 1960.  Meanwhile, what the Census Bureau now calls “unmarried partner households” have climbed in number from 523,000 couples in 1970 to 4,900,000 in 2000: a nine-fold increase.  The count of non-family households in America, with neither marriage nor children present, soared from a mere 7 million in 1960 to nearly 33 million in 2000.  At the same time, the number of married couple families with children actually declined slightly in absolute numbers, from 25.7 million back in 1960 to 25.2 million in 2000.  Such families were one-half of all American households in 1960; today only one quarter.  We also see what sociologist Kingsley Davis calls a “Declining Marital Output;” that is, fewer children.  The U.S. Marital Fertility Rate fell from 157 in 1957 to only 84 in 1995:  a marked retreat from children.1

On the other hand, as we know, there is mounting clamor for access to legal marriage among persons in relationships traditionally denied such treatment.  As the “gay rights” organization Lambda Legal explains: “Same-sex couples want to get married for the same...reasons as any other couple: they seek security and protection that come from a legal union....; they want the recognition from family, friends and the outside world...; and they seek the structure and support for their emotional and economic bonds that a marriage provides.”2

Alas, there are broader legal challenges to the contemporary institution of marriage.  A series of recommendations from the American Law Institute, issued a year ago, would strip traditional marriage of most distinctive legal status: not by direct repeal, but rather by extending the protections afforded by marriage to other relationships.  The proposals, for example, would grant alimony and property rights to cohabiting domestic partners, both hetero- and homosexual.  Moreover, the Law Institute urges that adultery be eliminated as a factor in deciding divorce issues such as alimony, child-custody, and the division of property.  The number of persons who could claim custody or visitation rights with a child would also expand, to include so-called “defacto parents.”3

Meanwhile, The Alliance for Marriage has put forward in this Congress a proposed Amendment to the U.S. Constitution declaring that “Marriage in the United States shall consist only of the union of a man and a woman” and prohibiting judges from conferring marital status or benefits on other couples or groups.

Looking at developments in all Western nations, two European scholars note that legal structures touching on marriage that had been “fairly stable over several centuries have quite suddenly crumbled.”  As the authors conclude: “The principles that uncontestedly dominated family law for hundreds of years have been turned topsy-turvy.”4

It is also curious to note that, back in 1926, the new Communist rulers of Soviet Russia shocked the world with a plan to abolish the legal registration of marriage.  As one of the measure’s most passionate advocates explained:

Why should the State know who marries whom?  Of course, if living together and no registration is taken as the test of a married state, polygamy and polyandry may exist; but the State can’t put up any barriers against this.  Free love is the ultimate aim of a socialist state; in that State marriage will be free from any kind of obligation, including economic, and will turn into an absolutely free union of two beings.5

While Communism failed horribly and violently as an economic and political system, its dream of marriage as “free from any kind of obligation, including economic” is actually being achieved in parts of the European Union.  There, the label “marriage” survives, but it confers ever-declining status.  Social benefits and taxes normally assume that the married couple is actually two individuals.  Moreover, a so-called “traditional marriage” of breadwinner husband/homemaking wife actually pays a large financial penalty.6  As the American Law Institute Report suggests, the legal profession in America now pushes toward the same ends.

Also strange is the fact that — unlike persons in, say, 1960 — we now know, through compelling, irrefutable social science evidence that marriage is good for society, good for adults, and good for children.  Books such as Glenn Stanton’s Why Marriage Matters (1997), Linda Waite and Maggie Gallagher’s The Case for Marriage (2000), and Bridget Maher’s A Family Portrait (2002) show that traditional marriage is a great and irreplaceable social gift; every good government has a vital interest in encouraging as many traditional marriages as possible.

In this time of confusion, perhaps it is appropriate to ask the more fundamental question: Just what is marriage?  The ancient Greeks had an answer.  According to a legend passed on by Plato, there was once a being with both male and female natures who offended the gods and, as punishment, was divided into male and female halves.  Ever since, man and woman must find their missing half;  when they do, they are rebound in marriage.  The Book of Genesis has another answer: “So God created man in his own image, in the image of God he created him; male and female he created them.  And God blessed them, and God said to them, ‘Be fruitful and multiply and fill the earth’....Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh.”7  The 19th Century French writer Louis de Bonald, who helped create modern social science, defined marriage as “a potential society,” becoming “an actual society” only with the birth of the first child:  “In a word, the reason for marriage is the production of children.”8 Compare these content-rich images to that of certain modern sociologists, who describe “the unique character” of marriage as being simply “public approval and recognition”; that is, something, anything, is “marriage” if the “public” says so.9

And so, being a certified member of the “public,” I want to draw on history and offer my own definition of marriage.  I will do so through five images:

One popular view sees Americans, among the world’s peoples, as specially or uniquely committed to individualism, personal autonomy, and the cultivation of the self.  Some analysts argue that this attitude goes back even to the colonial days before the American Revolution.10

More careful history tells a different story.  As Colgate University’s Barry Alan Shain reports in The Myth of American Individualism: 

It appears that...most 18th-century Americans... lived voluntarily in morally demanding agricultural communities shaped by reformed-Protestant social and moral norms.  These communities were defined by overlapping circles of family- and community-assisted self-regulation and even self-denial.11

Indeed, the evidence suggests that America has long sustained an unusually strong culture of marriage.  Ben Franklin saw it, attributing early and nearly universal marriage during the mid-18th Century to America’s abundance of land and opportunity.  “Marriages in America are more general, and more generally early, than in Europe,” he wrote.12  Twenty years later, the political economist Adam Smith saw it, linking America’s culture of marriage to a thriving economy:

The value of children is the greatest of all encouragements to marriage.  We cannot, therefore, wonder that the people in America should generally marry very young.13

Alexis de Tocqueville saw it during his mid-19th century visit to America:

There is certainly no country in the world where the tie of marriage is more respected than in America, or where conjugal happiness is more highly or worthily appreciated.14

American sociologists saw it in the middle of the 20th Century, when the average age for first marriage fell to 20 for women and 22 for men and when 95 percent of adults entered into this culture of marriage.15

How did this American culture of marriage work?  Allow me a personal story, one perhaps for the younger folks.  My higher education began at a Swedish Lutheran school along the Mississippi River in Illinois: Augustana College.  When I arrived there in 1967 as a freshly-scrubbed Freshman, the oft-told moral turmoil of the 1960’s had not quite yet reached our campus.  Instead, the College President greeted us new students and our parents in an assembly, where he noted jovily: “Look around you.  You may be sitting next to your future husband or wife and your future in-laws.”  Everyone laughed, but he spoke the truth.  The Augustana campus, like most colleges of the era, was the place where one expected to meet one’s future husband or wife.  I know I expected to...and I did.  The expectation of marriage was in the very air:  marriage was assumed to be your next life step; all the cultural and institutional signals pointed that way.

Today, this assumption and the same signals are not commonly found on American college and university campuses.  One prominent exception is Brigham Young University.  There, the expectations of early maturity and early marriage still exist: even in the statuary on the campus grounds, which features positive images of motherhood, fatherhood, and home.

Oddly, America’s culture of marriage also survives in another, much-more-unexpected place: Hollywood.  What do the following popular films have in common: My Big Fat Greek Wedding; Maid in Manhattan; Sweet Home Alabama; Kate and Leopold; Notting Hill; Runaway Bride; You’ve Got Mail; Pretty Woman; and Sleepless in Seattle?   My daughters call them “chick flicks.”  A better label might be “marriage flicks,” for all of them cast marriage as the truly fulfilling event in a woman’s — and a man’s —  life.  None of these films, let alone the whole genre, could have been made in libertine, post-marriage Western Europe.  Indeed, a recent report from the Netherlands tells of Jennifer Hoes, a 30-year-old who, standing before a public official, married herself: “We live in a me society,” she explained.  The Europeans do not believe in Cinderella anymore; Americans still do.  These films are distinctly our own:  signs of a still extant cultural yearning for marriage and home.

This is not my original observation.  Rather, this is the classic definition of marriage long used by cultural anthropologists to explain this institution: namely, men and women cooperate economically in order to produce and rear children.  According to the great 20th century anthropological surveys, marriage as such is found “in every known human society.”16  It is certainly true that for thousands of years and for hundreds of generations, humankind organized most economic tasks around the family household.

Some cast the industrial revolution of the last 150 years as the material source of contemporary challenges to marriage, tearing apart the natural home economy.  There is some truth in this analysis.  However, some go on to argue that a new family form is now needed: an “egalitarian” family, without role specialization or home production of any sort, that would accommodate the industrial impulse.  But it will not work.  I agree with Kingsley Davis that such an “egalitarian family system” — as dreamed of by the Bolsheviks and as seen today most fully in Western Europe — cannot be sustained.  High levels of divorce and cohabitation, combined with low birth rates, actually “raise doubts that societies with this egalitarian system will [even] survive.”17

The necessary alternative is to find new ways of articulating and advancing marriage as an economic partnership.  Between 1948 and 1969, for example, the U.S. government did treat marriage as a true partnership for purposes of taxation, allowing married couples to “split their income” like all other legal partnerships.  One clear result was “the marriage boom” of that era: a phenomenon that ended only after the elimination of income splitting.18  In addition, calculations from Australia show that the traditional “home economy” has not disappeared at all.  Even in advanced industrial societies, the uncounted but real value of continuing home activities such as child care, home carpentry, and food preparation is still at least as large as that of the official economy.19  Moreover, a growing number of Americans are actively reversing the industrialization of key activities that were once the family’s: this is how we should see home schooling, for example, now embracing over two million American children.20

Here, a libertarian perspective offered by Valparaiso University Law Professor Richard Stith, clarifies the issues at stake.  He notes that liberals and conservatives alike should agree that state registries of friendships are a bad idea.  Indeed, at present, most kinds of friendships are totally unregulated in the U.S.  Even before the recent Lawrence v. Texas Supreme Court decision, most states had already decriminalized non-marital sexual relations or no longer enforced prohibitions.  This has meant that, for example, the participants in same-sex unions have been as free as anyone else to form long-lasting friendships — and to seal them with promises or binding contracts — all without governmental approval and registration.21

Stith emphasizes that only one category of friendship has faced government registry:  those heterosexuals entering legal marriage.  But this should not be seen as a liberty or right.  Rather, it is primarily a burden.  For the most part, marriage legislation limits, rather than increases, individual freedom.  Marriage laws commonly mandate the sharing of earnings and debts, compel mutual support, and limit rights to terminate the relationship.22

Why do modern governments leave most friendships free and unregulated but continue to register and burden these heterosexual unions?  Stith replies:

Everyone knows the answer: Sexual relationships between women and men may generate children, beings at once highly vulnerable and essential for the future of every community....Lasting marriage receives public approbation...because it helps to produce human beings able to practice ordered liberty.23

Heterosexual unions can create a child at any moment, so the public has a deep interest in their stabilization from the very beginning.  In contrast, same-sex unions are “absolutely infertile.”  Moreover, the relatively modest benefits adhering to legal marriage and not available through private contract — such as social security provisions — are justified as minimal compensation to those parents, usually women, who make sacrifices such as giving up a career to create and raise children.

It takes a poet to remind us here that marriage is more than a bond between two people.  The Kentuckian Wendell Berry underscores that marriage also exists to bind the couple as “parents to children, families to the community, the community to nature.”  The new bride and groom “say their vows to the community as much as to one another, and the community gathers around them to hear and to wish them well, on their behalf and on its own.”  The vows bind the lovers “to forebears, to descendants,...to Heaven and earth.”  Even the touch of one married lover to another:

...feelingly

persuades us what we are:

one another’s and many others’....

How strange to think of children

yet to come, into whose making

we will be made....24

Using a favorite metaphor, Berry says that marriage “brings us into the dance that holds the community together and joins it to its place.”25

Here, I mean “political” in the broad sense, as explained by the early 20th Century journalist G.K. Chesterton.  He saw the family as an “ancient” institution, one that pre-exists the state and one that “cannot be destroyed; it can only destroy those civilizations which disregard it.”  This “small state founded on the sexes is at once the most voluntary and the most natural of all self-governing states.”  Modern governments seek to isolate individuals from their family, the better to govern them; to divide in order to weaken.  But the family is self-renewing, an expression of human nature, which builds on the natural state of marriage.  “The ideal for which [marriage] stands in the state is liberty,” Chesterton writes.  It stands for liberty because it is “at once necessary and voluntary.  It is the only check on the state that is bound to renew itself as eternally as the state, and more naturally than the state.”  It creates “a province of liberty” where truth can find refuge from persecution and where the good citizen can survive the bad government.26

In sum, drawing on the lessons of history, I see marriage as especially American, as the union of the sexual and the economic, as a fruitful balance of burdens and benefits, as a communal event, and as political in its essence, the true reservoir of liberty.

Endnotes

1  Data from The Statistical Abstract of the United States, 2002 and earlier editions.  See also:  Kingsley Davis, ed., Contemporary Marriage: Comparative Perspectives on a Changing Institution (New York: Russell Sage Foundation, 1985): 39.

2  From:  “Talking About the Freedom to Marry,” Lambda Legal, June 20, 2001, at: http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=47.  

3  From: Robert Pear, “Legal Group Urges States to Update Their Family Law,” New York Times (Nov. 30, 2002): 1-2.

4  Harry Willekens and Kirsten Scheive, “Introduction: The Deep Roots, Stirring Present, and Uncertain Future of Family Law,” Journal of Family Law 28 (2003): 5-14.

5  By a Woman Resident of Russia, “The Russian Effort to Abolish Marriage,” The Atlantic Monthly (July 1926): 4.  Emphasis added.

6  See: Allan Carlson, The Swedish Experiment in Family Politics: The Myrdals and the Interwar Population Crisis (New Brunswick, NJ: Transaction Books, 1990): chapter 7.

7  Genesis 1: 27-28; 2:24. Revised Standard Version.

8  Louis de Bonald, On Divorce, trans. and ed. by Nicholas Davidson (New Brunswick, NJ: Transaction Publishers, 1992): 63-64.

9  Davis, Contemporary Marriage, p. 4.

10 See, for example: Bernard Bailyn, Education in the Forming of American Society: Needs and Opportunities for Study (Chapel Hill: University of North Carolina Press, 1960); and Jay Fliegelman, Prodigals and Pilgrims: The American Revolution Against Patriarchal Authority, 1750-1800 (Cambridge, England: Cambridge University Press, 1982).

11 Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought (Princeton, NJ: Princeton University Press, 1994): xvi.  Emphasis added.

12 Benjamin Franklin, “Observations Concerning the Increase of Mankind [1755],” in Leonard W. Labaree, ed., The Papers of Benjamin Franklin, Vol. 4 (Yale University Press, 1961): 228.

13 Adam Smith, The Wealth of Nations [1776]: Book 1, Chapter 8, “Of the Wages of Labour,” at http://geolib.com/ smith.adam/won1.-08.html.

14 Quoted at: http://www.nccs.net/newsletter/ jan00nl.html, p. 2.

15 Davis, Contemporary Marriage, pp. 31-32.

16 George P. Murdoch, Social Structure (New York: The Free Press, 1965 [1949]): 7-8.

17 Kingsley Davis, “Wives and Work: A Theory of the Sex-Role Revolution and Its Consequences,” in Sanford M. Dornbusch and Myra H. Strober, eds., Feminism, Children and the New Families (New York: The Guilford Press, 1988): 71, 79-80, 82, 84.

18 See: Allan Carlson, “Taxing the Family: An American Version of Paradise Lost?” Family Policy Review 1 (Spring 2003): 1-20.

19 See: Duncan Ironmonger, “The Domestic Economy: $340 Billion of G.H.P.,” in B. Muehlenberg, ed., The Family: There is No Other Way (Melbourne: Australian Family Association, 1996): 132-46.

20 See:  Lawrence M. Rudner, “Scholastic Achievement and Demographic Characteristics of Home School Students in 1998,” Education Policy Analysis Archives, (23 Mar. 1999): 7-8, 12.

21 Richard Stith, “Keep Friendship Unregulated,” The Cresset (Easter 2003): 47-49.

22 For a summary of these burdens, see: Michael S. Wald, “Same-Sex Couples: Marriage, Families, and Children: The Legal Consequences of Marriage,” Stanford University Law School (1999); at http:// 216.239.37.100/search?q=cache:6Vzgi3iFC7wJ:lawschool.stanford.edu/faculty/wald/co

23 Stith, “Keep Friendship Unregulated,” p. 47.  Emphasis added.

24 Wendell Berry, A Timbered Choir: The Sabbath Poems, 1979-1997 (Washington, DC: Counterpoint, 1998): 99.  Emphasis added.

25 Berry, Sex, Economy, Freedom & Community, p. 133.

26 G.K. Chesterton, Family, Society, Politics, Vol. 4 of The Collected Works of G.K. Chesterton  (San Francisco: Ignatius Press, 1987): 237, 242-45, 252-56.

The changing status of the family in Sweden over the past 100 years can be summarized through five transitions:

From a regime where the family was an open expression of Christian values with claims of its own to a regime that is intentionally secular and designed to protect the interests of the individual;

From a legal order that gave preference to the property and inheritance claims of blood relations and lineage to one giving preference to the claims of the surviving spouse;

From a regime that assumed a breadwinning husband/father and a homemaking wife/mother to a regime giving first priority to gender equality, universal adult employment, and self support;

From a legal order that encouraged marriage as an economic partnership resting on a vital home economy to a regime dedicated to what one analyst calls “statisation,”1 where the state deliberately takes over family functions and encourages the economic independence of married adults and universal dependence on the welfare state;

And from a regime that presumed marriage to be exclusively heterosexual to one that grants nearly equal status, benefits, and obligations to same-sex couples.

The overall story is one highlighting the interaction of ideology and law-making.

The foundation of Swedish law remains a vast statute called Sveriges rikeslag, enacted in 1734 but now with innumerable amendments.2  Under the assumption of a “common estate,” this measure long codified the inferior status of women relative to men in matters of earnings and property.  Despite some liberalization in the late 19th Century, the Swedish husband until 1920 still held the right to control and administer the common estate during marriage.  Reflecting the importance of land and lineage in the old regime, the law also excluded from the common estate real property acquired before marriage or by inheritance during marriage.  In the then-rare cases of divorce, the marital estate would be divided equally, although marital misconduct such as adultery could result in penalties imposed on the offender.3

In 1918-19, The Kingdom of Sweden experienced a bloodless democratic revolution.  Following mass protests in the streets, the King surrendered virtually all of his power to Parliament.  The adoption of universal adult suffrage in 1920 extended the vote to women.  And Sweden’s Parliament or Riksdag also adopted a new Marriage Code in 1920. 

This Code built on the idea of the marital home as an economic partnership, with husband and wife equal in rights but different in function.  Relative to property, the 1920 Code adopted the concept of “deferred community.”  The prescribed marital property system rested on the idea of “separate administration but equal division for one and all.”  The measure abolished the automatic co-ownership of property during marriage as well as the position of the husband as the dominant administrator.  Rather, each spouse would control and administer the property that he or she owned at the time of marriage or gained later.  Jointly owned property was also possible.  Notably, the 1920 Code also embraced the idea of independent liability; spouses were not held responsible for each other’s debts (except for educational expenses for their children and certain direct household expenditures).  The Code expanded the definition of marital property to include property acquired before marriage or by inheritance during marriage.  On the dissolution of the marriage through death or divorce or by mutual petition, all marital property would be divided equally, although in cases of divorce the Courts retained the power to punish one or the other spouse for marital misconduct.  Importantly, the Code did lay upon the husband a special responsibility for economic support of his wife and children.  Overall, the 1920 Code aimed at creating a relatively simple property system that minimized disputes and lawyering and encouraged gender specialization in the home.  It was ideally suited to a people committed to nearly universal marriage and the avoidance of divorce.4

During the early 1930’s, a declining marriage rate and a sharply falling fertility rate led to calls for radical changes in the Swedish home.  For example, the feminist Social Democrat Alva Myrdal generated a furor by calling for “collectivized homes” for Swedish families, where young mothers would join fathers in the full time labor force, with infants and toddlers cared for in common nurseries, and with meals prepared in collectivized kitchens (and she actually saw such a facility through to construction).  With husband Gunnar Myrdal, she co-authored in 1934 the book Kris i befolkningsfrågan (“Crisis in the Population Question”).  In order to raise Sweden’s birthrate, they said, the natures of marriage and family needed to be radically changed.  Fathers should be freed from their “breadwinner” role; mothers freed from “homemaking.”  All adults should work, and massive new state welfare benefits — child allowances, daycare subsidies, universal health care, low interest “marriage loans”, and so on — should pay the costs of parenthood.  The marital home, under their scheme, would largely cease to be a significant economic unit.  Working through The Royal Population Commission of 1935 and the Swedish Parliament’s Women’s Work Committee, the Myrdals enjoyed a remarkable influence for the balance of the decade.5

By 1940, however, their ideas were in retreat.  The onset of World War II and Sweden’s perilous position as a “neutral” nation surrounded by Nazi German conquests encouraged a conservative nationalism.  Relative to the family, older ideas found in the labor unions — that “women were to be liberated from the labor market rather than liberated to participate in it” and that men deserved to earn a living “family wage” — regained popularity.  Feminist analysts now call the 1940-67 period “the era of the Swedish housewife.”  Public policy encouraged the full-time care of small children at home.  The marriage rate climbed, while the average age at first marriage fell.  Fertility also rose: Sweden’s mini-Baby Boom.  As late as 1965, only three percent of all Swedish preschool children were in some form of non-parental day care.  The “traditional Swedish family,” encouraged by The Marriage Code of 1920 and by popular values, seemed solid.6

Yet the late 1960’s experienced new waves of radical change: so-called “Eurocommunism” was on the march, while Red Brigades terrorized Italy and West Germany, and France was torn apart by the New Left riots.  Meanwhile, Christian values — summarized by one analyst as “responsibility, sacrifice, altruism and the sanctity of long-term commitments [such as marriage]” — rapidly gave way in Western Europe to a militant “secular individualism” focused on the desires of the self.7

Sweden also entered into what one leading historian, Yvonne Hirdman, calls its “Red Years,” 1967-1976.8  At their heart was a massive “gender turn” that would radically alter the nature of marriage in Sweden.  In 1968, a joint report by the Social Democratic Party and the trade union alliance (the LO) concluded that “there are...strong reasons for making the two breadwinner family the norm in planning long-term changes within the social insurance system.”9  The next year, the same Alva Myrdal chaired a major panel “On Equality” for the Social Democrats.  Its report concluded that ‘[i]n the society of the future,...the point of departure must be that every adult is responsible for his/her own support.  Benefits previously inherited in married status should be eliminated.”  The Report also called for a tax policy based on individual earnings, without preference for any so-called “form of cohabitation.”10

Accordingly, in 1969 the Swedish government resolved to fundamentally reform its marriage law.  The Minister of Justice created a Committee of Experts and issued a set of Directives.  The Committee was to consider whether there was still even a need for marriage law and, if so, how it should be reconfigured.  It was to consider the “clearly anachronistic” nature of community property, based as it was on the discarded Christian notion of “one flesh.”  The Committee should strive for a more complete secularization of domestic relations laws.  It should also consider the diminished importance of marital status in Sweden, the new imperative of “personal fulfillment,” the rising demand for divorce, declining public interest in material property in favor of pensions, annuities, and other claims on the welfare state, and the elevation of gender equality into the cornerstone of Swedish social policy.11

In this spirit, Sweden’s Parliament approved in 1971 a fundamental reform of the income tax.  It abolished the taxation of households through the joint income tax return premised on “income splitting” by married couples.  Instead, all persons would henceforth be taxed as individuals, without attention to marital status, dependents, employment, or income of a spouse.  This gave Sweden the most “fully individualized taxation system” in the developed world.  In the context of high marginal tax rates, this change also greatly benefited the two-income household and penalized the traditional one-income breadwinner family.12  Analysts of modern Sweden are nearly unanimous in viewing this shift from “joint” to “individual” taxation as the most sweeping social change in Sweden over the last 40 years, for it “more or less eradicated” the traditional home.13

On the basis of the Family Law Reform Committee’s work, Parliament approved a new measure in 1973 governing marriage and divorce.  Most legal impediments to marriage disappeared: even half-brothers and half-sisters could marry, as could aunts and nephews, uncles and nieces.  Only siblings and persons related by blood in unilinear descent faced prohibition; bigamy and polygamy were also banned.  The minimum marriage age for both spouses became 18.   Premised on the idea of marriage as a voluntary union, it was — in one advocate’s words — “only natural that if one of the spouses is dissatisfied, he or she may demand a divorce.”  In effect, the community or state was deemed no longer to have a significant interest in the preservation of a marriage.  “Fault” would no longer be considered, nor would marital misconduct have any bearing at all on the division of property.  If both husband and wife agreed to the divorce, it would be immediately granted.  If one spouse objected or if there was at least one child under age 16 in the home, the new law fixed a mandatory reconsideration period of six months.  “Separation” no longer had legal status.  The measure assumed adult self-support and largely ended the concept of alimony (except in limited cases where “maintenance” payments for a set time might be required).14

Focused on property and inheritance questions, the new Marriage Code of 1987 weakened — but did not entirely eliminate — the concept of marriage as an economic partnership.  On the one hand, and despite pressure for a more individualistic formulation, the new law retained the concept of “deferred community property” found in the 1920 Code.  In principle, a spouse remained entitled to a half share in marital property at the time of divorce or death.  The Courts gained more power to set aside pre-nuptial contracts establishing separate property.  And surviving spouses won greater control over marital property relative to children and other heirs, continuing the so-called “amputation of the blood line” in Sweden.15

On the other hand, other provisions gave spouses increased independence.  One abolished the obligation each had to manage and preserve matrimonial property.  Joint liability for debts acquired by household expenditures or children’s education disappeared.  In one commentator’s words, the new Code reflected “the increasing focus in the law itself on termination of marriage, rather than on its preservation.”16  The 1987 Code also ended the husband’s special responsibility to support the family.  Both spouses now had a shared responsibility.17

The Joint Homes Act was also approved in 1987.  This new measure governing “relationships similar to marriage” rested on “the principle of neutrality toward family form.”  As Ulla Björnberg explains:

The principle states that individuals are free to develop their personal lives at their own will, to choose a living arrangement and ethical norms for their family life.  The role of family law is restricted to providing solutions to practical problems and to formulate rules of a kind that can be accepted by almost all individuals.18

Still, the Joint Homes Act did not equate “cohabitation” with “marriage.”  Specifically, cohabitators did not gain the equivalence of “marital property rights” in inheritance or a right to claim “maintenance” after separation.  Rather, the rules in this measure applied only to the equal splitting of a dwelling and household goods acquired for joint use. 

Still, the measure did affirm that parenthood in consensual unions would involve rights and responsibilities equal to those in marriage.  Unmarried fathers must register with the state.  Joint custody of children after separation is the assumption for both cohabitating and married couples.

A novel development in the 1987 measure, though, was that it applied to both unmarried heterosexual and homosexual couples.19

In 1995, the Swedish Parliament approved a law granting same-sex couples the right to form a “registered partnership.”  This represented a civil contract providing rights and responsibilities nearly identical to those of conventional marriage.  The few exceptions involved adoption, joint custody, and artificial insemination.  “Registered partners” gained rights to “deferred community property” and to a claim for maintenance following a break-up of the couple.20

In 2000, the government severed its official ties to the Lutheran Church of Sweden.  The same year, the Swedish government extended the “registered partnership” option to foreign nationals residing in Sweden for at least two years.  In 2002, gay and lesbian couples gained the right to adopt children (although during the first year of this law’s operation, none had done so).  Recent Court decisions have also given legal recognition to polygamous marriages among immigrants from Muslim countries.

Regarding marriage, the sweep of change in Sweden has been massive.  All the same, there are a few signs of contrary movement, even second thoughts.

In 2000-02, for example, a curious case worked its way through the European Court system.  “D,” a male Swedish national, took a job in 1996 with the European Union (E.U.) Council of Ministers in Brussels.  He brought with him his “registered partner” from Sweden, and asked the E.U. Council to recognize his partner as a “spouse” in order to claim a household allowance.  Unexpectedly, the Council refused to grant the allowance, a decision reaffirmed by the Court of First Instance, the E.U. Advocate General, and finally the European Court of Justice.  Importantly, at each stage, the decision rested on viewing the European family “on the basis of a very traditional model of a (male) breadwinner with a dependent spouse and children.”21

Of similar novelty, some Swedish analysts are beginning to suspect that “cohabitation,” long viewed as a form of liberation for women, may in fact be “a trap.”  As Ulla Björnberg concludes:

The neutral position in family law and in rules of social protection presupposes that women and men have similar positions, which they do not have.  Considering the position of women in the labor market in Sweden, the higher economic insecurity for women in consensual unions could be a trap. 

Greater uncertainty in employment and welfare benefits, she continues, tied to minimal protections accorded by legal cohabitation, have made private life more difficult and have contributed to Sweden’s perilously low birth rate.22

In short, it appears that the more conventional form of marriage may be finding new and unexpected friends, even in 21st Century Sweden.

Endnotes

1  A term used in D. Bradley, “Marriage, Family, Property and Inheritance in Swedish Law,” International and Comparative Law Quarterly 39 (April 1990): 380.

2  Michael Bogdan and Eva Ryrstedt, “Marriage in Swedish Family Law and Swedish Conflicts of Law,” Family Law Quarterly 29 (Fall 1995): 675-76.

3  See: Bradley, “Marriage, Family, Property and Inheritance in Swedish Law,” pp. 373-74.

4  Ibid., pp. 373-78.

5  Alva and Gunnar Myrdal, Kris i befolkningsfrågan (Stockholm: Bonniers, 1934); and more broadly: Allan Carlson, The Swedish Experiment in Family Politics: The Myrdals and the Interwar Population Crisis (New Brunswick, NJ: Transaction, 1990): chapters 3-5.

6  Yvonne Hirdman, “The Importance of Gender in the Swedish Labor Movement, Or: A Swedish Dilemma.”   Paper prepared for the Swedish National Institute of Working Life, 2002: 3-5; and Ann-Katrin Hatje, Befolkningsfrågan och välfärden: debatten om familjepolitik och nativitetsökning under 1930-och 1940-talen (Stockholm: Allmänna förlaget, 1974).

7  Ron Lesthaeghe, “A Century of Demographic and Cultural Change in Western Europe: An Exploration of Underlying Dimensions,” Population and Development Review 9 (1983): 429.

8  Hirdman, “The Importance of Gender in the Swedish Labor Movement.”

9  From: Jane Lewis and Gertrude Åström, “Equality, Difference, and State Welfare: Labor Market and Family Politics in Sweden,” Feminist Studies 18 (Spring 1992): 67.

10 Alva Myrdal, et al., Toward Equality: The Alva Myrdal Report to the Swedish Social Democratic Party (Stockholm: Prisma, 1972 [1969]): 17, 38, 64, 82-84.

11 Fariborz Nozari, “The 1987 Swedish Family Law Reform,” International Journal of Legal Information 17 (1989): 219-20; and Bradley, “Marriage, Family, Property and Inheritance in Swedish Law,” pp. 378-81.

12 Irene Dingledey, “International Comparison of Tax Systems and Their Impact on the Work-Family Balancing,” at http://www.latge.de/ak tuellveroeff/am/dinge100b.pdf.

13 Anne Lise Ellingsaeter, “Dual Breadwinner Societies: Provider Models in the Scandinavian Welfare States,” Acta Sociologica 41 (#1, 1998): 66; Sven Steinmo, “Social Democracy vs. Socialism: Goal Adaptation in Social Democratic Sweden,” Politics & Society 16 (Dec. 1988): 430; and Maud L. Edwards, “Toward a Third Way: Women’s Politics and Welfare Policies in Sweden,” Social Research 58 (Fall 1991): 681-82.

14 Bogdan and Ryrstedt, “Marriage in Swedish Family Law,” pp. 678-79; Nozari, “The 1987 Swedish Family Law Reform,” pp. 220-23.

15 Quotation in Bradley, “Marriage, Family, Property and Inheritance in Swedish Law,” p. 384.

16 Ibid., p. 383.

17 Nozari, “The 1987 Swedish Family Law Reform, p. 223-26; and Ake Saldeen, “Sweden: Reforms of Marriage, Inheritance and Cohabitation Proposed,” Journal of Family Law 26 (1987-88): 197-205.

18 Ulla Björnberg, “Cohabitation and Marriage in Sweden—Does Family Form Matter?” International Journal of Law, Policy and the Family 15 (2001): 352-53.  Emphasis added.

19 Björnberg, “Cohabitation and Marriage in Sweden,” pp. 350-62.

20 Eugenia Caracciolo di Torella and Emily Reid, “The Changing Shape of the ‘European Family’ and Fundamental Rights,” European Law Review 27 (2002): 80-83.

21 Di Torella and Reid, “The Changing Shape of the European Family and Fundamental Rights,” pp. 80-90.  The case was: D and Sweden v. Council.

22 Björnberg, “Cohabitation and Marriage in Sweden,” p. 360.