"This is the generation of the great LEVIATHAN, or rather, to speak more reverently of that mortal god, to which we own under the immortal God, our peace and defense." -Thomas Hobbes: Leviathan
The following is taken from an article about Britain’s latest move to legalise same-sex marriage.
Such lobbyists naturally believed that all you had to do to allow gay marriage was to extend to same-sex couples exactly the same law as applied to existing, heterosexual marriages.
Too late, they discovered, this cannot be done. Civil servants, confronted with the embarrassing task of working out what defined the consummation of a homosexual relationship, faltered. Since homosexual acts have no existential purpose and no procreative result, consummation is a meaningless concept. From this it followed that the Government could come up with no definition of adultery in a homosexual marriage. A law designed to be equal, is not. Under the Bill, non-consummation will not be grounds for divorce in same-sex marriage. Nor will adultery.
By accident, then, the Government is introducing, for the first time, a definition of marriage which has no sexual element. Yet it refuses to face the logical consequence of this surprising innovation. If sexual intercourse is not part of the definition of same-sex marriage, why should blamelessly cohabiting sisters not marry one another in order to avoid inheritance tax? Why should father not marry son? Why shouldn’t heterosexual bachelor chum marry heterosexual bachelor chum? What, come to think about it, is so great about the idea of monogamy, once sex and children are removed from the equation? Does the word “marriage” any longer contain much meaning?
And if Equality is the highest of all moral aims, how can the Government possibly justify not extending the gay right to a civil partnership to heterosexual couples who, at present, have no such privilege? If this Bill becomes law, all these matters will be litigated over, right up to the European Court of Human Rights in Strasbourg. Against such outcomes, as he painfully well knows, Mr Cameron can make no provision.
To provide some background to this discussion, there are three ways a marriage can end: Annulments, Fault-Divorce and No-Fault Divorce.
(1) An annulment doesn’t really “end” a marriage, it merely declares that a marriage never existed in the first place and was invalidly contracted from the start. An example would be a case where it is discovered that one’s spouse was actually a long lost sibiling, then since incestuous marriages are invalid from the start, an annulment is a declaration that the marriage never existed in the first place. Thus the distinction between a divorce and an annulment is simply that a divorce recognises a marriage did exist but was now being undone, while an annulment is a declaration that it never existed in the first place. Another very important and vital ground for an annulment is the non-consummation of a marriage. If a marriage was never consummated, the marriage in a sense never existed, and upon request the law can simply annul the marriage.
(2) A Fault-Divorce, which for centuries in Christendom was the only kind of divorce, is a divorce which is given on the basis of a “fault” or wrong doing by either marital party, a fault which offends against the meaning of marriage, the most common fault/offense being adultery. Thus in the past, there were very few valid reasons why the courts would grant a divorce and normally adultery and desertions are the few such grounds.
It is clear how gay “marriage”, with its inability to define what exactly constitutes an adultery or consummation, renders the legal definition of their “marriage” impossible, leading to the strange and rather paradoxical situation where a marriage really has nothing to do with sex and has no sexual component, which finally leads me to the last one,
(3) No-Fault Divorce, which is a very recent invention. A no fault divorce is a divorce given not on any grounds of wrong-doing (thus “no-fault”) but simply because the couples simply doesn’t want to or decide to be together any more. So, on this conception of “marriage”, marriage is just a pure agreement, nothing to do with sex or whatever, simply an expression of a decision.
The problem with no-fault divorce as has been so brilliantly pointed out by this blogger, is simply that the existence of no-fault divorce turns a marital contract into an illusionary contract.
Imagine a contract whereby one party promises to perform a certain service or give a certain good with a clause which goes, “provided I want to or feel like it”. This contract is known in contract law as an “illusionary contract”, a contract which doesn’t contain any real obligations or duties or promises, which the courts cannot enforce and therefore will simply ignore because there is nothing legally enforceable, since it does not contain any real obligations or promises.
Thus a no-fault divorce is in effect such an “illusionary contract”. It is a promise to be married, “provided I feel like it”, or “if I want to”. But once you don’t want to, you can simply dissolve the marriage.