Vol. 8 4 / 2002

Do hoang Nghia phutavanthu@yahoo.com or nthihoang@aol.com

MARRIAGE & HUSBAND, WIFE, AND CHILDREN & DIVORCE

Nguyeãn vieát Ñöùc

Researcher

USA California Los Angeles

A marriage is socially sanctioned union that reproduces the family. In all societies the choice of partners is generally guided by rules of exogamy (the obligation to marry outside a group), and in more complex societies, by rules of endogamy (the obligation to marry within a group). These rules may be prescriptive or, as in the case of the incest taboo, proscriptive; they generally apply to kinship groups such as clan or lineage; residential groups; and social groups such as the ethnic group, caste, or class.

Marriage is usually heterosexual and entails exclusive rights and duties of sexual performance, but there are instructive exceptions. For example, Nayar women of India would ritually marry men of a superior caste, and could then enjoy sexual relations with any number of other men and bear legitimate children. Among the Dahomey of West Africa, one woman could marry another; the first woman would be the legal father of the children (by other men) of the second. These examples highlight the functions of marriage to reproduce both a domestic division of labor and social relationships between different groups. Such functions are served even by the more common type of marriage, the union of one or more men with one or more women.

In most societies men and women are valued for their different roles in the household economy. Marriage therefore often occasions other economic exchanges. If a woman's labor is highly valued, a man may offer valuable goods (bride-price) or his own labor (bride-service) to another group in exchange for a wife. If a man's labor is more highly valued, the bride's family may offer goods (dowry) to the husband or his family.

I. MARRIAGE AS A SOCIETAL BOND

In many societies marriage links not only individual families but larger social formations as well. Some endogamous societies are divided into different exogamous groups (such as clans or lineages); marriages between groups tie them together. In such situations, women are often the means through which men form alliances. In some cases, two men of different groups exchange sisters for brides. Other instances involve an adult man marrying the young or infant daughter of another man; sex would be deferred for many years, but the two men will have formed a strong bond. Marriages are often arranged by the families through the services of a matchmaker or go-between (e.g., among the Australian aborigines, the Dayaks of Borneo, the Basutos and the Bambara of Africa, and the Arabs, as well as among the Slavic peoples of Europe). Marriages often commence with a ritual celebration, or wedding. After the wedding, the couple has three choices of residence: patrilocal (with or near the husband's family), matrilocal (with or near the wife's family), or neolocal (independent of either).

Although marriage tends to be regarded in many places as a permanent tie, unsuccessful unions may be terminated in most modern societies. The causes of termination vary, but adultery, infertility, failure to provide the necessities of life, and mistreatment are the most common. Civil unions are now permitted in Western countries, but for nearly a thousand years marriage in the Western world was a religious contract. The Christian church undertook its supervision in the 9th century, when newly wed couples instituted the practice of coming to the church door to have their union blessed by the priest. Eventually the church regulated marriage through canon law.

II. FORMS OF MARRIAGE

Monogamy (the union of one wife to one husband) is the prevalent form almost everywhere. Polygyny (having several wives at one time), however, has been a prerogative in many societies (see harem). It is commonly found where the value of women's labor is high: a man with several wives would have a more productive household; conversely, a wealthier man could afford more wives. It is also practiced as a way of acquiring allies: a man may cement his bonds with several other men by marrying their sisters or daughters. Polyandry (having several husbands at one time) is rare, having occurred infrequently in Tibetan society, among the Marquesas of Polynesia, and among certain hill tribes in India. People who enjoy only a marginal subsistence may practice polyandry as a way of limiting births. It is also practiced where brothers must work together to sustain one household; they share one wife. The custom of marrying a widow to her late husband's brother is known as levirate marriage, and was common among the ancient Hebrews. In sororate marriages a widower marries his deceased wife's sister.

III. MARRIAGE IS A LEGAL AND SOCIAL CONTRACT.

Marriages are required. At an early period, common-law marriages were frequent in Europe. The difficulties arising from common-law marriages—e.g., the doubtful legitimacy of children—led to their complete prohibition in Roman Catholic countries by the Council of Trent. Although common-law marriage was abolished in England in 1753, it remained lawful in Scotland and in the American colonies. Today, most

American states do not recognize as legal the entering into of such a marriage with their borders.

EVOLUTION OF MARRIAGE LAW

The former Anglo-American law of marriage was chiefly characterized by the view that husband and wife are one legal personality for whom the husband acts. Accordingly, the husband determined the marital domicile, he was the dominant figure in the relation of parent and child, and nearly all the property of the wife passed to his absolute control for the duration of the marriage. The wife ordinarily could not make separate contracts, but if her husband refused support to her or to the children, she might pledge his credit to supply the needs of her station in life. After the death of a spouse, the survivor usually enjoyed a partial interest in the deceased's property.

The wife's dower entitled her to one third of the husband's property on his death; courtesy, a similar right of the husband in the wife's property, accrued only if children had been born of the marriage.

In time, the equity courts recognized the wife's right during her husband's lifetime to a separate property in trust established for her benefit. By the late 19th century, the need for a separate trust property disappeared, for Great Britain and all the American states adopted “married women's property” statutes, giving to wives complete control over their property and their contracts. Most states provided that in place of dower and courtesy a surviving spouse was entitled to a certain minimum share in the estate of the deceased spouse. A few states, following the Spanish law, recognized community property, whereby all property acquired during the marriage is owned by both husband and wife and is divided equally on the dissolution of the marriage.

Other features of the older laws on marriage persisted, but many were modified or eliminated. Certain old legal actions for injury to the marital relation that were once available only to the husband, such as actions for criminal conversation (i.e., a civil action against the spouse for adultery), actions for loss of consortium (marital services) because of physical injury to the wife; and actions for alienation of the wife's affections are now either extended to the wife or denied to both parties. Although homosexual couples have been unsuccessful in obtaining the legal status of marriage, they have had some success in accruing some of the benefits afforded to married couples, such as joint insurance policies and adoption rights.

IV. HUSBAND, WIFE AND CHILD

Legal relationship that confers certain rights and duties on Although created by a contract between husband and wife, marriage is a legal relation of a particular nature with certain mutual rights and obligations, determined not by agreements but by the general law. In a sense, then, the state has an interest in every marriage. The parties cannot themselves officially terminate the marital relation by a contract of separation.

V. DIVORCE

JURISDICTION OVER DIVORCE

In England, divorce was originally under the jurisdiction of the ecclesiastical courts. These courts followed the canon law rules. They could grant a divorce from bed and board and could pass on the original validity or nullity of the marriage, but could not grant a total divorce from the marriage bond. This power lay only in Parliament. In 1857, by act of Parliament, judicial courts succeeded to the jurisdiction over nullity and partial dissolution and were given the added power to grant total dissolution of the marriage. In the United States, where ecclesiastical courts were never established, the matrimonial law of England applied by these courts was never received as part of the common law. Consequently, suits for divorce can be brought under authority of statute only. The statutes usually confer upon equity courts jurisdiction over divorce. The power to legislate on divorce belongs to the states and not to the Federal government, and each state has unique laws regarding divorce.

GROUNDS FOR DIVORCE

Until the recent advent of the “no-fault” divorce, in which neither party is expected to prove the spouse as the “guilty party” in the marriage, a marriage could be dissolved only for what the state deemed to be proper grounds. While “no-fault” divorces have become increasingly common in all U.S. states, there are still many cases where marital partners seek to establish fault, particularly in states that require a waiting period of legal separation before allowing a “no-fault” divorce. The most common grounds are adultery, desertion, and physical or mental cruelty. Habitual drunkenness, incurable mental illness, conviction of a crime, nonsupport, or constructive abandonment are other grounds for establishing fault. Corrupt consent by a party to the conduct of the other party bars a divorce, as does collusion. Forgiveness of the offense, either express or implied (as by cohabitation), on condition that it not be repeated, is a bar to a divorce for that offense.

THE DIVORCE DECREE

A decree of divorce is valid only if the court rendering the decree has jurisdiction and jurisdiction is in the main based on the domicile of the parties. An absolute divorce, as contrasted with a decree of nullity, takes effect from the date of the decree. By the divorce decree, the custody of the children is usually given at the discretion of the court to one of the parties, the welfare of the children being the principal consideration. In recent years, fathers in divorce proceedings have fought for equal custody rights, calling into question the long-standing tradition of favoring the mother in custody battles. New developments in divorce law allow joint custody of children, as well as visitation rights for grandparents and other relatives.

The wife may retain the husband's name, although in most states she may choose to resume her maiden name. Both parties are usually at liberty to remarry, although this rule is not invariable, and a time limit within which the parties may not remarry is sometimes imposed. In most jurisdictions, one

Spouse may be entitled to alimony payments from the other at the discretion of the court.

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