Outstanding article and a wonderful compression of western legal traditions concerning marriage! I believe that there needs to be higher legal standards for divorce in order to provide a disincentive to seeking it for arbitrary and capricious reasons but the core which is rotten is the religious one. I just don’t think secular marriage will ever be successful regardless of the legal structures. If couples don’t understand that you are entering a covenant with God together you’ve lost the foundation to push through the difficult spots in the marriage and the reason you chose to be one flesh to begin with. A true marriage doesn’t need the threat of legal consequences to survive when you fear the spiritual consequences of separation. The horrible outcomes that happen to children of divorce and their parents are really proof of the spiritual consequences that occur no matter the outcome of a court hearing.
I was a product of divorce but overcame it but the truth was I was made to overcome things that I shouldn’t have had to deal with. I’m not bitter and love my parents but they never had the spiritual commitment to each other to overcome the hard times.
Agree. It is also almost impossible to have a proper religious marriage with no legal recourse. If one can ignore vows before God without punishment, it gives the sense they aren't real.
I loosely agree with this, it does seem to be a somewhat global and historical norm for children to be retained by husbands in marriage. One of those things tho that ends up needing caveats since our entire system is wonky. And it also seems preferable for a nursing age child to stay with his mother. But generally this seems too lindy to ignore, at least matched the book im reading on this history of marriage
The modern system is so off kilter it's going to be a long grueling struggle to get back to normalcy. I'm actually fine with babies going to the mother in principle. Tender years doctrine usnt entirely wrong, but we have to avoid moral hazards and injustice. For instance, my best friends BIL's wife left him when their child was six months old and moved to Alaska. The courts pretty much shrugged their shoulders and said oh well.
I think part of what went awry with the "tender years" doctrine was that it gave *permanent* custody to the mother. I remember a medieval custom where the kids were primarily raised by mom until 7, then they lived with dad and he primarily raised them (or something like that).
Like, if your kid is 8 you get custody, but if your kid is six, then the kid stays with your ex permanently.
It's patently obvious to any involved, sentient parent that young children prefer/need the mother and that older children drift into an involved father's orbit, if you will, around 7-12. The medieval custom you mention - I'd love to locate more about it - sounds exactly right. (Now, it also has a whiff of child labor to it, with apprenticeships often starting quite young and children having the capacity to do work. I was a data entry clerk for my father's software startup at 13, so I know!)
The remedy to modern family court resides in the destruction of the moral hazard that now surrounds every motherly decision; until the fling with the tennis coach becomes taboo again - and a real risk of losing your moneyed status - it will continue.
Well written, researched, documented and logically articulated. I feel your pain and stand in solidarity with you.
The whole legal oracle of "Best Interest of the Child" which is interpreted and decided by a judge ,is manipulated day in and day out to the benefit of the mother, not the child and much less of the father.
Interesting that you leave out Caroline Norton in your description of the ending of coverture in England. She was pivotal in both the introduction of the Tender Years Doctine and the Married Women's Property Act.
Perhaps because what her husband put her through (severe abuse; keeping her from her children, even when they were dying; claiming her wages as his own as an attempt to force her back home when they were living apart, slander in the papers using her money, etc.), and the initial response by the patriarchal society that she lived in, shows how horrific things were for married women, and that your romanticised idea of coverture being balanced and bringing harmony, is a complete fiction.
You knew that there was no positive way to spin what her situation was, how much she was oppressed, and so you left it out entirely.
'She found her husband unsufferable' is a far different way to present things to an audience than 'her husband battered her, once so badly that she miscarried, and her servants had to protect her from him; he claimed her earnings, kept her from her son when he was dying, was abusive to the children... etc'.
The latter presents the facts, confirmed by several others and admitted even by the husband. The former, on a rightwing site, invites the reader to see the woman as capricious, dramatic, spoilt.'
You're a writer; I have no doubt that you knew what you were doing.
But of course you can afford to be glib about the dangers of coverture; almost all of the vulnerability was on the woman's side. She was the one whose identity was lost, and who was completely at the mercy of the husband, not the other way around.
I wonder that you didn't go as far as Blackstone and claim that the details of coverture were mostly for the woman's 'benefit and protection', rather than anything else.
Men were legally obligated to subject themselves to oftentimes unceasing, back-breaking labor to provide for the family. He could not leave or stop working without forfeiting his rights. Even if his wife was awful. They were in it together with well-established rights and responsibilities.
If modern marriage was better, more women would be excited to get married. But it isn't.
Men often did disappear. They couldn't divorce easily, but they could just walk off, into the night, and not look back. There are many many examples of that happening if you care to look. Angela's Ashes is inspired by the author's experience in a poor Irish Catholic family in the first half of the 20th century. His father, an alcoholic, just walked away from his family one day, leaving his wife and family destitute. There was no serious police force scouring the area to return him.
A man stuck with a wife who was awful was in a far less vulnerable position than the reverse. He could beat his wife, and few would protect her if he claimed it was somehow warranted, he could go off to the pub and drink with his friends and leave her with the children much of the time, he could commit her against her will to an asylum for being 'inconvenient' or 'unfeminine'. Or as stated above, he could simply walk out.
What a ridiculous thing to suggest. That women would want to marry more if we were more trapped within marriage. Women didn't want marriage more back then. Society was just set up in such a way to discriminate against women so that they needed marriage for financial support (they earned less than men for the same work and were cut off from good paying jobs). Do you think women in Afghanistan want marriage more than western women do?
Wives deserted their husbands also. Husbands suffered under insufferable shrews. Husbands had to deal with lousy mothers. Husbands have to deal with frivolous women who overspent.
Also, they couldn't simply "walk out". And there were multiple protections to try to avoid husband desertion. The reason a marriage was public was to make it more difficult for a man to leave or engage in bigamy. Many social controls were in place to make this as difficult as possible.
> What a ridiculous thing to suggest. That women would want to marry more if we were more trapped within marriage. Women didn't want marriage more back then.
Fascinating mind-reading that women from centuries ago had the same mental world-model as a modern feminist.
You can see the advice from Shakespeare and Boccacio on how society thought husbands could handle 'shrews'. Wife beating, scolds bridle, an asylum, later on a lobotomy (even when coverture was 'toothless' men had this power).
Whereas for the woman who was beaten? Who had a man who drank his (and her) money or spent it on prostitutes or gambling? Who had a husband who found her inconvenient and wanted to commit her to an asylum? Who cheated on her and then, by insisting on his 'marital rights', infected her with an std? What could she do?
It is in no way comparable. The power and status is on the man's side. The danger and degradation is on the woman's.
Plenty of women had to go along with it because it's all there was, even if she was suffering in silence, but still many spoke against the injustice if you know where to look
And what distinguishes the asshole from the gentleman is whether he bothers to consult with the subject of his protection on what they want or need before intervening.
I wish you'd have at least nodded to the way that the creation of child support payments tied into women not being allowed to have bank accounts at the time.
Women "not being allowed to have bank accounts" is a fiction. See Janice Fiamengo's excellent substack for more true stories about the real history of women and feminism.
The Equal Credit Opportunity Act of 1974 (ECOA) is the federal law that allowed women to open bank accounts, obtain credit cards, and apply for mortgages without a male co-signer.
Outstanding article and a wonderful compression of western legal traditions concerning marriage! I believe that there needs to be higher legal standards for divorce in order to provide a disincentive to seeking it for arbitrary and capricious reasons but the core which is rotten is the religious one. I just don’t think secular marriage will ever be successful regardless of the legal structures. If couples don’t understand that you are entering a covenant with God together you’ve lost the foundation to push through the difficult spots in the marriage and the reason you chose to be one flesh to begin with. A true marriage doesn’t need the threat of legal consequences to survive when you fear the spiritual consequences of separation. The horrible outcomes that happen to children of divorce and their parents are really proof of the spiritual consequences that occur no matter the outcome of a court hearing.
I was a product of divorce but overcame it but the truth was I was made to overcome things that I shouldn’t have had to deal with. I’m not bitter and love my parents but they never had the spiritual commitment to each other to overcome the hard times.
Agree. It is also almost impossible to have a proper religious marriage with no legal recourse. If one can ignore vows before God without punishment, it gives the sense they aren't real.
I loosely agree with this, it does seem to be a somewhat global and historical norm for children to be retained by husbands in marriage. One of those things tho that ends up needing caveats since our entire system is wonky. And it also seems preferable for a nursing age child to stay with his mother. But generally this seems too lindy to ignore, at least matched the book im reading on this history of marriage
The modern system is so off kilter it's going to be a long grueling struggle to get back to normalcy. I'm actually fine with babies going to the mother in principle. Tender years doctrine usnt entirely wrong, but we have to avoid moral hazards and injustice. For instance, my best friends BIL's wife left him when their child was six months old and moved to Alaska. The courts pretty much shrugged their shoulders and said oh well.
I think part of what went awry with the "tender years" doctrine was that it gave *permanent* custody to the mother. I remember a medieval custom where the kids were primarily raised by mom until 7, then they lived with dad and he primarily raised them (or something like that).
Like, if your kid is 8 you get custody, but if your kid is six, then the kid stays with your ex permanently.
It's patently obvious to any involved, sentient parent that young children prefer/need the mother and that older children drift into an involved father's orbit, if you will, around 7-12. The medieval custom you mention - I'd love to locate more about it - sounds exactly right. (Now, it also has a whiff of child labor to it, with apprenticeships often starting quite young and children having the capacity to do work. I was a data entry clerk for my father's software startup at 13, so I know!)
The remedy to modern family court resides in the destruction of the moral hazard that now surrounds every motherly decision; until the fling with the tennis coach becomes taboo again - and a real risk of losing your moneyed status - it will continue.
Well written, researched, documented and logically articulated. I feel your pain and stand in solidarity with you.
The whole legal oracle of "Best Interest of the Child" which is interpreted and decided by a judge ,is manipulated day in and day out to the benefit of the mother, not the child and much less of the father.
Interesting that you leave out Caroline Norton in your description of the ending of coverture in England. She was pivotal in both the introduction of the Tender Years Doctine and the Married Women's Property Act.
Perhaps because what her husband put her through (severe abuse; keeping her from her children, even when they were dying; claiming her wages as his own as an attempt to force her back home when they were living apart, slander in the papers using her money, etc.), and the initial response by the patriarchal society that she lived in, shows how horrific things were for married women, and that your romanticised idea of coverture being balanced and bringing harmony, is a complete fiction.
You knew that there was no positive way to spin what her situation was, how much she was oppressed, and so you left it out entirely.
Corner cases make bad law. Now we have millions of children estranged from a mother or father due to divorce instead of a few tragic cases.
Also, I directly cited the De Manneville case, a very similar one at the same time. Thou doth protest too much.
De Manneville was different and played down.
'She found her husband unsufferable' is a far different way to present things to an audience than 'her husband battered her, once so badly that she miscarried, and her servants had to protect her from him; he claimed her earnings, kept her from her son when he was dying, was abusive to the children... etc'.
The latter presents the facts, confirmed by several others and admitted even by the husband. The former, on a rightwing site, invites the reader to see the woman as capricious, dramatic, spoilt.'
You're a writer; I have no doubt that you knew what you were doing.
It was a far more than a 'few tragic cases'.
But of course you can afford to be glib about the dangers of coverture; almost all of the vulnerability was on the woman's side. She was the one whose identity was lost, and who was completely at the mercy of the husband, not the other way around.
I wonder that you didn't go as far as Blackstone and claim that the details of coverture were mostly for the woman's 'benefit and protection', rather than anything else.
Men were legally obligated to subject themselves to oftentimes unceasing, back-breaking labor to provide for the family. He could not leave or stop working without forfeiting his rights. Even if his wife was awful. They were in it together with well-established rights and responsibilities.
If modern marriage was better, more women would be excited to get married. But it isn't.
Men often did disappear. They couldn't divorce easily, but they could just walk off, into the night, and not look back. There are many many examples of that happening if you care to look. Angela's Ashes is inspired by the author's experience in a poor Irish Catholic family in the first half of the 20th century. His father, an alcoholic, just walked away from his family one day, leaving his wife and family destitute. There was no serious police force scouring the area to return him.
A man stuck with a wife who was awful was in a far less vulnerable position than the reverse. He could beat his wife, and few would protect her if he claimed it was somehow warranted, he could go off to the pub and drink with his friends and leave her with the children much of the time, he could commit her against her will to an asylum for being 'inconvenient' or 'unfeminine'. Or as stated above, he could simply walk out.
What a ridiculous thing to suggest. That women would want to marry more if we were more trapped within marriage. Women didn't want marriage more back then. Society was just set up in such a way to discriminate against women so that they needed marriage for financial support (they earned less than men for the same work and were cut off from good paying jobs). Do you think women in Afghanistan want marriage more than western women do?
Wives deserted their husbands also. Husbands suffered under insufferable shrews. Husbands had to deal with lousy mothers. Husbands have to deal with frivolous women who overspent.
Also, they couldn't simply "walk out". And there were multiple protections to try to avoid husband desertion. The reason a marriage was public was to make it more difficult for a man to leave or engage in bigamy. Many social controls were in place to make this as difficult as possible.
> What a ridiculous thing to suggest. That women would want to marry more if we were more trapped within marriage. Women didn't want marriage more back then.
Fascinating mind-reading that women from centuries ago had the same mental world-model as a modern feminist.
You can see the advice from Shakespeare and Boccacio on how society thought husbands could handle 'shrews'. Wife beating, scolds bridle, an asylum, later on a lobotomy (even when coverture was 'toothless' men had this power).
Whereas for the woman who was beaten? Who had a man who drank his (and her) money or spent it on prostitutes or gambling? Who had a husband who found her inconvenient and wanted to commit her to an asylum? Who cheated on her and then, by insisting on his 'marital rights', infected her with an std? What could she do?
It is in no way comparable. The power and status is on the man's side. The danger and degradation is on the woman's.
Plenty of women had to go along with it because it's all there was, even if she was suffering in silence, but still many spoke against the injustice if you know where to look
"the main aspiration of most men is protection,"
And what distinguishes the asshole from the gentleman is whether he bothers to consult with the subject of his protection on what they want or need before intervening.
I wish you'd have at least nodded to the way that the creation of child support payments tied into women not being allowed to have bank accounts at the time.
Women "not being allowed to have bank accounts" is a fiction. See Janice Fiamengo's excellent substack for more true stories about the real history of women and feminism.
The Equal Credit Opportunity Act of 1974 (ECOA) is the federal law that allowed women to open bank accounts, obtain credit cards, and apply for mortgages without a male co-signer.