Page 5 of 14 FirstFirst ... 34567 ... LastLast
Results 41 to 50 of 132
Thanks Tree31Thanks

Thread: Definition of Marriage

  1. #41
    Established Member
    Joined
    Jan 2007
    Posts
    6,963
    Thanks
    300

    From
    Irrelevant
    Quote Originally Posted by Ian Jeffrey View Post
    With a contract, rights and responsibilities are determined solely by the parties, within the bounds of what the law permits or requires. With a marriage, rights and responsibilities are determined by law. ...
    Why the need for law to determine marital rights and responsibilities and not in commercial agreements?

    Quote Originally Posted by Ian Jeffrey View Post
    The law also defines responsibilities, not just rights.
    Which you admitted come into play only upon the dissolution of the marriage.

    Quote Originally Posted by Ian Jeffrey View Post
    As to "what a marriage is," I do not know what you are getting at.
    What you are describing holds for contracts as well, does it not? The law steps in to determine the rights and responsibilities of the contracting parties upon the dissolution of the contract (assuming there are issues regarding rights and responsibilities of the contracting parties).

    Which brings us back to the original question -- why marriage and not just a contract? I imagine that was the point of the op.

    Quote Originally Posted by Ian Jeffrey View Post
    If opposite-sex marriage is contemplated, why is a mere contract insufficient to define it?
    Because marriage results in the family, the fundamental group unit of society -- persons whose well-being are entirely dependent on the marital union and yet were not party to the marital contract. Without the family, the state has no interest in the agreement of consenting adults -- as you have pointed out regarding commercial contracts.

    Quote Originally Posted by Ian Jeffrey View Post
    The point, of course, is that the law no longer distinguishes between "opposite-sex" marriage and "same-sex marriage." They are legally identical, and so the distinction need not be drawn.
    But a distinction exists -- opposite-sex marriage results in the family and same-sex marriage does not (within that union). If that distinction does not exist (or is irrelevant to the state), why make a distinction between marriage and mere contracts in the first place?
    Last edited by kingrat; 18th January 2018 at 07:40 AM.

  2. #42
    Established Member
    Joined
    Jan 2007
    Posts
    6,963
    Thanks
    300

    From
    Irrelevant
    Quote Originally Posted by Ian Jeffrey View Post
    The details will vary from state to state, of course, and may be changed by any state at any time. But there is no legal distinction between a common-law marriage and a marriage solemnized by the state, considering substance over form.
    What is the substance of the marriage and what is its form?

    Quote Originally Posted by Ian Jeffrey View Post
    It is not a "marriage" unless the law says so.
    But that is what I said -- that the law merely recognizes a marriage for what it is. At best, the law could withdraw its recognition of the marriage (declare it null and void). It does not prevent a couple from living their lives as husband and wife (which I assume you meant by substance)

    Quote Originally Posted by Ian Jeffrey View Post
    It matters for questions of legal responsibilities, too.

    Documentation may be needed to prove there is a marriage, in the event that it is disputed.
    Yes, questions of legal rights and responsibilities -- which come into play only upon the dissolution of the marriage and only if these rights and responsibilities are disputed before a court of law -- same thing with commercial contracts.

    What is different is that in the law's determination, the best interest of the child(ren) is paramount over the rights of the parents.
    Last edited by kingrat; 18th January 2018 at 07:41 AM.

  3. #43
    Established Member
    Joined
    Jan 2007
    Posts
    6,963
    Thanks
    300

    From
    Irrelevant
    Quote Originally Posted by Ian Jeffrey View Post
    How can it not?
    You mean the law can prevent a man and a woman from living their lives as husband and wife? Do they go to jail?

    You just said there is no legal distinction between a common-law marriage and one that is solemnized by the state.

  4. #44
    Established Member
    Joined
    Jan 2007
    Posts
    6,963
    Thanks
    300

    From
    Irrelevant
    Quote Originally Posted by Ian Jeffrey View Post
    Nothing. The original parties are still married. The second "marriage" would be void.
    Even when the jurisdictions reside in different countries?

    Remember, a void or voidable marriage needs a declaration of nullity from a court of law and such a declaration cannot be made unless the question is put before it. How then can the original jurisdiction compel the other jurisdiction to make a declaration of nullity? Does it convict the other spouse of concubinage even if that spouse resides outside its jurisdiction? And what of the spouse still residing within its jurisdiction? Can it really hold that spouse to the rights and responsibilities of a marriage that no longer exist in substance?

    Quote Originally Posted by Ian Jeffrey View Post
    There is no "fact" that the marriage is dissolved. Without a legal dissolution, the marriage still exists. There is no "common-law divorce" in the United States.
    In the example I provided, it is a fact that the spouses no longer live their lives as husband and wife and that one spouse is effectively outside its jurisdiction for any court declaration to matter. And it is on the basis of this fact that a declaration of nullity is given.
    Last edited by kingrat; 18th January 2018 at 07:42 AM.

  5. #45
    Spock of Vulcan Ian Jeffrey's Avatar
    Joined
    Mar 2013
    Posts
    54,753
    Thanks
    26264

    From
    Vulcan
    Quote Originally Posted by kingrat View Post
    Why the need for law to determine marital rights and responsibilities and not in commercial agreements?
    I do not believe I articulated that there is a "need" to do so, only that it is so. Some rights and responsibilities are granted or imposed by the state, and so the state gets involved in the process.

    However, it is not impossible for the state to get entirely out of the marriage business; grant no rights and impose no responsibilities attendant therewith; and leave the matter entirely to private contract with the common law of contracts being applicable to its provisions. In that scenario, a dissolution could be accomplished in the same manner as the dissolution of any other contract.

    (Note that some commercial agreements are governed by a state's Uniform Commercial Code, and so the state gets heavily involved in the regulation of those contracts, including determining rights and responsibilities. However, there are also many contracts that do not involved the UCC.)

    Of course, there would still be issues of child custody, parenting time and support, that could and should be dealt with in a different manner. But we already have laws dealing with such cases where there is no marriage to dissolve, and so while these issues do accompany a divorce, they also form the bases for their own independent causes of action.

    Quote Originally Posted by kingrat View Post
    Which you admitted come into play only upon the dissolution of the marriage.
    Not entirely. There are some that accompany marriage itself, though it is true most issues do not arise except upon petition for dissolution.

    Quote Originally Posted by kingrat View Post
    What you are describing holds for contracts as well, does it not? The law steps in to determine the rights and responsibilities of the contracting parties upon the dissolution of the contract (assuming there are issues regarding rights and responsibilities of the contracting parties).
    Largely, but not quite. An action in re: dissolution of a contract is in the event of a breach of that contract. With a marriage, in a no-fault state, there is no breach; one party alleges the marriage is irretrievably broken (or language to that effect), and that allegation is irrebuttable. In a fault state, a "breach" (or fault) must be proven, and being very expensive it is typically preferably to go the no-fault route (which every state has available).

    Quote Originally Posted by kingrat View Post
    Because marriage results in the family, the fundamental group unit of society -- persons whose well-being are entirely dependent on the marital union and yet were not party to the marital contract. Without the family, the state has no interest in the agreement of consenting adults -- as you have pointed out regarding commercial contracts.
    There is no distinction in this (or any other) respect between same-sex or opposite-sex couples. A parent in a same-sex couple can have one or more biological children, whose legal parents can be the couple rather than the biological parents (one of whom may not be even known).

    Quote Originally Posted by kingrat View Post
    But a distinction exists -- opposite-sex marriage results in the family and same-sex marriage does not (within that union). If that distinction does not exist (or is irrelevant to the state), why make a distinction between marriage and mere contracts in the first place?
    That is a valid position to hold - that the state should get out of the marriage business entirely - and just revert to contract law. I suspect that position will in fact gain more traction over time, as the state gets out of the business of being in people's private lives. This would (or, potentially, could) make it easier for marriages between more than two people, as the marriage contract business expands, and authors of science/speculative fiction (most notably Robert A. Heinlein, but also David Gerrold) have dealt with such issues in their works of fiction.

  6. #46
    Spock of Vulcan Ian Jeffrey's Avatar
    Joined
    Mar 2013
    Posts
    54,753
    Thanks
    26264

    From
    Vulcan
    Quote Originally Posted by kingrat View Post
    What is the substance of the marriage and what is its form?
    In this context, a marriage is a marriage, as defined by the state (the substance). It does not matter whether it is common-law or solemnized pursuant to statute (the form).

    Quote Originally Posted by kingrat View Post
    But that is what I said -- that the law merely recognizes a marriage for what it is.
    Well, no. As I understand your statement above, you are saying the marriage exists independently of the law, and I am saying that it does not as a matter of law. Even a common-law marriage must meet legal requirements in order to be so.

    Quote Originally Posted by kingrat View Post
    At best, the law could withdraw its recognition of the marriage (declare it null and void). It does not prevent a couple from living their lives as husband and wife (which I assume you meant by substance).
    People can certainly lead their lives that way, but that does not in itself mean they are married.

    Quote Originally Posted by kingrat View Post
    Yes, questions of legal rights and responsibilities -- which come into play only upon the dissolution of the marriage and only if these rights and responsibilities are disputed before a court of law -- same thing with commercial contracts.
    For the most part.

    Quote Originally Posted by kingrat View Post
    What is different is that in the law's determination, the best interest of the child(ren) is paramount over the rights of the parents.
    That is true, but it is true independent from whether there is even a marriage, because it is no less true for an unmarried couple than a married couple.

  7. #47
    Spock of Vulcan Ian Jeffrey's Avatar
    Joined
    Mar 2013
    Posts
    54,753
    Thanks
    26264

    From
    Vulcan
    Quote Originally Posted by kingrat View Post
    You mean the law can prevent a man and a woman from living their lives as husband and wife? Do they go to jail?
    They can live their lives as if married, but that does not mean they are married.

    Quote Originally Posted by kingrat View Post
    You just said there is no legal distinction between a common-law marriage and one that is solemnized by the state.
    Choosing to live as if married does not make for a marriage, even a common-law marriage. There are legal requirements that must be met before it counts as a marriage.

  8. #48
    Spock of Vulcan Ian Jeffrey's Avatar
    Joined
    Mar 2013
    Posts
    54,753
    Thanks
    26264

    From
    Vulcan
    Quote Originally Posted by kingrat View Post
    Even when the jurisdictions reside in different countries?
    Probably, though that could depend on the particular country's law, which may not recognize marriages (or certain marriages) from other jurisdictions. I was thinking primarily of different jurisdictions within the United States, in which the Constitution has a clause that requires each state to recognize (among other things) marriages from other states.

    Quote Originally Posted by kingrat View Post
    Remember, a void or voidable marriage needs a declaration of nullity from a court of law and such a declaration cannot be made unless the question is put before it. How then can the original jurisdiction compel the other jurisdiction to make a declaration of nullity?
    Nullity would not be necessary. Dissolution would suffice.

    Quote Originally Posted by kingrat View Post
    Does it convict the other spouse of concubinage even if that spouse resides outside its jurisdiction?
    Assuming the legal process were brought into play, it could. Whether practical, or whether a state would pursue it, would of course be a separate question.

    Quote Originally Posted by kingrat View Post
    And what of the spouse still residing within its jurisdiction? Can it really hold that spouse to the rights and responsibilities of a marriage that no longer exist in substance?
    Yes. However, it is possible for that spouse to get divorced from the absent spouse, having the court in her jurisdiction make a judgment, and thus allowing her to remarry should she desire.

    Quote Originally Posted by kingrat View Post
    In the example I provided, it is a fact that the spouses no longer live their lives as husband and wife and that one spouse is effectively outside its jurisdiction for any court declaration to matter. And it is on the basis of this fact that a declaration of nullity is given.
    This would more likely be a dissolution than an annulment (depending on the specific fact pattern), as annulments are somewhat rare. But the fact they no longer live together does not ipso facto make for a dissolution or annulment of the marriage. That one party is absent from the jurisdiction does not prevent that jurisdiction from making a judgment dissolving or annulling the marriage.

  9. #49
    Veteran Member aboutenough's Avatar
    Joined
    Nov 2008
    Posts
    53,121
    Thanks
    2838

    From
    Washington state
    Government (like always) has done a good job of ruining marriage. The party in power gets to appoint the judges that can make rulings to change marriage. I’m expecting plural marriage to be the next big change. A man wants to marry his laptop, sure why not, he deserves equal protection. A mother wants to marry her Daughter, sure why not, equality of the law. On and on goes the world of insanity.

  10. #50
    Spock of Vulcan Ian Jeffrey's Avatar
    Joined
    Mar 2013
    Posts
    54,753
    Thanks
    26264

    From
    Vulcan
    Quote Originally Posted by aboutenough View Post
    I’m expecting plural marriage to be the next big change.
    And this is a problem because ... ?

    Quote Originally Posted by aboutenough View Post
    A man wants to marry his laptop, sure why not, he deserves equal protection. A mother wants to marry her Daughter, sure why not, equality of the law.
    These make no sense. You do not understand what equal protection is or how it works.

Page 5 of 14 FirstFirst ... 34567 ... LastLast

Similar Threads

  1. Replies: 388
    Last Post: 13th June 2015, 11:56 AM
  2. Replies: 54
    Last Post: 11th September 2014, 05:47 PM
  3. Replies: 22
    Last Post: 26th August 2012, 11:26 AM
  4. Replies: 6
    Last Post: 17th August 2012, 08:41 AM
  5. What is the definition of a RIGHT?
    By The_Bear in forum Political Discussion
    Replies: 27
    Last Post: 24th February 2009, 01:03 PM

Tags for this Thread


Facebook Twitter RSS Feed