Governed by marriage law

Date01 June 2016
Published date01 June 2016
Subject MatterArticles
Governed by marriage
law: An Irish genealogy
Deirdre McGowan
Dublin Institute of Technology, Ireland
Marriage law links the private and the political, connecting the aspirations of individuals
to the regulatory ambitions of the state. Marriage has significant social and cultural
importance, but the assumptions of stability and care it entails are also useful to gov-
ernment. As a result, marriage law has, both historically and in the present, been offered
as the solution to a range of social problems. Using Ireland as a case study example, this
essay focuses on the problems that marriage law reform has attempted to address and
the political frameworks within which reform took place. It suggests that marriage law is
a technique of government that aims to encourage marriage performance in the interests
of economic and social stability.
Foucault, Ireland, marriage law, relationship regulation, social government
In recent years, European governments have used marriage law reform to signal their
commitment to the principles of equality and social diversity. Equality for gays and les-
bians will be achieved, it is claimed, through admission to the privileged status of mar-
riage, allowing access to specific legal and fiscal privileges and providing public
endorsement of same-sex love and commitment. This movement towards ‘marriage
equality’ assumes that marriage law, if applied equally to same and opposite sex couples,
can solve the social problems of homophobia and heterosexism (Barker, 2013: 126). The
expectation that reform of marriage law can solve social problems is not unique to the
present. Historically, marriage law has been offered as a solution to female poverty and
Corresponding author:
Deirdre McGowan, Department of Law, Dublin Institute of Technology, Aungier Street, Dublin 2, Ireland.
Social & Legal Studies
2016, Vol. 25(3) 311–331
ªThe Author(s) 2015
Reprints and permission:
DOI: 10.1177/0964663915614110
sex-based discrimination, relationship breakdown and post-relationship financial vulner-
ability (Glendon, 1989; Stone, 1992).
The progressive potential of more marriage law is often assumed by governments and
political campaigners despite significant difficulties with existing legal rules. Scholars
describe how marriage law epitomizes patriarchy (Firestone, 1970; Pateman, 1988);
constructs women as vulnerable and necessarily dependent (Smart, 1984); privatizes the
social cost of inevitable human dependency (Fineman, 2004; Ferguson, 2007; O’Dono-
van, 1985); imposes traditional values on modern relationships (Ryan, 2007; Smart,
1997); is veiled in secrecy making outcomes unpredictable (Coulter, 2009), and fails
to produce justice for real, lived relationships (Diduck, 2003). How then has marriage
law maintained its position as a valued instrument of social reform both at the level of
the population and from the perspective of government?
In this essay, I reflect on the governmental or political aspect of relationship regu-
lation, identifying how marriage law has both created problems for government and,
simultaneously, offered solutions to social and regulatory problems. Using Ireland
as a case study example, I describe the history of marriage law reform from the per-
spective of government, how it has been deployed in furthering political objectives,
and the role it plays in fulfilling political aspirations for more complete governance
of the social domain.
Governed by Marriage Law
Political regulation of marriage began in England in the 1750s, and one of the first pieces
of social legislation enacted by the newly unified German was an act to regulate
In France, marriage has been considered a matter for state regulation since
the 1600s (Hanley, 1989). All Western nations now regulate entry to and exit from mar-
riage, and the legal consequences of relationship status are so far-reaching as to be vir-
tually impossible to catalogue (Barker, 2013: 28). Yet the legal implications do not begin
to capture the full extent of its regulatory influence. The officially legitimated family can
be relied upon to meet its own needs before calling on the state (Fineman, 2004: 40–44).
Marriage and family iconography contributes to the construction and maintenance of
gender roles (Diduck, 2003) promoting unpaid care work and legitimating discrimina-
tory employment practices (Gittins, 1993). The family can offer practical solutions to
problems with morality, health and procreation and has been used throughout history
to implement programmes of social reform (Donzelot, 1977).
Marriage law forges a powerful link between the personal and the political, connect-
ing the aspirations of individuals to the regulatory ambitions of the state (Smart, 1984).
The process of marriage law reform, in itself, has effects at the level of individual rela-
tionships, translating personal experience into legal discourse and shaping people’s
understanding of their own lives (Smart, 1984, 2004). Political debate around marriage
law reform builds images of the good life that both reflect and shape individual aspira-
tions, and legal authorization of relationship practices has come to signal sociocultural
authorization, re-enforcing both cultural practices and the necessity of law (Cherlin,
2009: 66). The central importance of the authorized conjugal couple to the process of
social government means that the state has a significant stake in how relationships are
312 Social & Legal Studies 25(3)

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