Part 2

Now common-law marriage as recognized in New York State consists in a meeting of the minds--a contract. Thus, if two people live together as husband and wife this may be evidence of a common-law marriage. No formal agreement is necessary. But if there has not been even a private agreement of marriage their living together would be unimportant. If they wished to separate they would need no divorce, for they would never have been married. By passing as husband and wife they might gain the social advantages that come from a recognized relationship, and, since there had been no definite agreement, they might save the inconvenience of divorce if they wished to separate. Difficulty arises only when both parties do not agree that there was no agreement. Sometimes one party claims there was and the other that there was not. Then the very indefiniteness of the tie means added difficulty and publicity in breaking it.

In order to avoid future disagreement one couple made a contract in which they stated that they lived as husband and wife in order to avoid social stigma, but that as between themselves there was no agreement of marriage. The situation was trying because they always felt they were living a lie. Their answer was that society foolishly demanded either a penalty or a form and they preferred to provide the form. Fortunately, neither ever had to swear to the status and they felt that this contract--which provided for future maintenance of the wife and custody of the children--solved the problem or doubt of a life-long relationship. To those who made ethical objection, they answered that they were willing to contract on matters which concerned their wills, but knew it was contrary to human nature to contract on matters which concerned their emotions.

Not long ago in New York City a young woman who had scruples about promising to love a man forever expressed to the city clerk her unwillingness to use the form of marriage ceremony which he had produced committing her to love, honor, and cherish the man for the rest of his or her life. She said she was in good faith willing to contract to marry, and that she would do the best she could to make the marriage successful, but that was all; to which the clerk answered that if she were entering marriage in that spirit she should not be married at all. He was finally persuaded that the parties could be tied merely by agreement on her part to become the man’s wife and on his part to become her husband.

If the law seems full of vagaries on the problem of entering marriage it is still more perplexing and technical when it concerns the question whether or not two people are still legally married when one has obtained a supposed divorce--so much so that it is not at all uncommon for a lawyer to be faced by a client asking whether or not he, or she, is really married. Some years ago a man was married in Philadelphia and later, having separated from his wife, went to New York. She obtained a decree of divorce in Pennsylvania, the papers having been served on him in New York. He married again and died a generation later, leaving a considerable fortune and three children by his second marriage. The first wife, or her attorneys, then discovered that the original divorce was not legal, since the Pennsylvania courts had not acquired a jurisdiction which would be recognized in New York. Since the man had left the estate to his “wife,” there were complications. As the question involved the meaning of a will, the matter was one of intention and it was not difficult to prove that the deceased intended as his beneficiary the woman whom he regarded as his wife. But had he owned real estate at the time of his divorce the first wife might have had a dower interest, and had his status become one of public importance his enemies might successfully have charged him with bigamy.

Ordinarily, people are satisfied with a decree of divorce. It gives them the desired social status. Its technical legality becomes of importance only in connection with estates or the legitimacy of children. But a difficult question arises in case of remarriage. Legality depends upon the jurisdiction of the court. This can be acquired by personal service of papers upon the defendant within the State or a voluntary submission to the jurisdiction by appearing in the case personally or by attorney. But State courts claim and recognize their own jurisdiction even though papers are served outside the State. Under these latter circumstances, suppose a divorce granted a man in Utah is not recognized in New York. If he remarries in Utah he will have one wife there, while in New York another woman would be his wife and he would be obliged to support her there. If his wife in New York married again, she would be guilty of bigamy. In Utah it would be his duty to live with one woman. New York would attempt to make it his pleasure to live with another, and this on the ground of morality, for, although, ordinarily, the law of the place of the new marriage (in this case, Utah) would apply, yet this would result in his having two wives in New York. So on legal grounds we disregard the divorce, and on moral grounds we negative the second marriage.

Foreign divorces raise the question not only of jurisdiction but of recognition by treaty of a judgment of the particular foreign country. For instance, judgments of French courts are not absolutely binding upon the courts of this country, as are the judgments of sister-States. In the case of Russia, where any two parties by agreement or a single person by request may become divorced, there is no treaty whatever. Occasionally, cases arise where persons abroad have obtained a decree for a rabbinical divorce. Under the old Jewish custom a rabbi could pronounce a divorce and the law of the state permitted a decree to be entered upon his pronouncement. Some states and countries make bids for the divorce business; not long ago an advertisement appeared announcing that a divorce might be had in Yucatan for $25, not, of course, including the expense of travel. Questions of the effect of interlocutory and final judgments, of the provisions of a divorce decree forbidding remarriage within a certain period, of the _bona fides_ of residence, of the jurisdiction of the court, of treaties with foreign countries may make it difficult to answer the question whether or not two people are legally married.

All this confusion represents a beating of wings against a cage--an endeavor to obtain a legal paper with a red seal which will avoid a situation which two people find intolerable. We are tending toward a new moral conception of the marriage relationship, well expressed by Premier Zahle of Denmark when submitting a new liberal divorce law: “It is based on the fundamental conception that it is morally indefensible to maintain a marriage relation by legal statute where all the real bonds between the parties are broken. This is a measure which certainly means a great step forward in the recognition of marriage as a moral relation.”

Marriage is a status resulting from a civil contract, but very few people who enter into it know what this contract is. It assumes certain rights and obligations. What are they? That the wage-earner will provide. This is enforcible, at least theoretically. What else? That the parties live in an emotional and mental state designated by an agreement “to love, honor, and cherish,” and, sometimes, “obey.” This is obviously unenforcible. (I make this assertion despite the recent Texas case in which a husband obtained an injunction restraining his wife’s employer from flirting with her.) The contract continues for life, subject to termination for causes which depend chiefly upon the place of residence, actual or acquired. If they live in South Carolina and stay there, the contract is indissoluble. In New York the contract may be terminated for adultery, unless the other party has likewise sought refuge outside of marriage; in Alabama, for habitual drunkenness; in Nevada, for neglect to provide for one year; in Kentucky and New Hampshire, for joining a religious sect which believes marriages unlawful; in New Jersey, for extreme cruelty; in Wisconsin, if the parties have voluntarily lived separately for five years; in Massachusetts and a host of other States, for desertion; in Pennsylvania and Oregon, for personal indignities or conduct rendering life burdensome; in Vermont, for intolerable severity; in France, if the parties have other emotional interests; in Denmark, by consent; in Russia, by request. Of course, in most of these states there are other grounds, but the result is that either party can bring about a situation which permits divorce or can make life so intolerable for the other that he or she consents to it. But these grounds must arise subsequent to marriage; the agreement cannot be made in advance.

In life the duration of marriage depends upon the desires or consent of individuals. In law it is perpetual, subject to termination not by agreement made at the outset, or by later consent, but by court decree. At the time of entering into marriage people usually know merely that somehow, somewhere, some time there is a way out if the situation becomes too strained. Technically, since the contract is for life, a divorce is granted for a breach. Thus there is an implied term, as there is in every contract, that relief is granted for a breach--but what constitutes a breach depends not upon the terms of the contract or the law of the place where the contract is made but upon the jurisdiction where relief is sought--a matter of which the parties ordinarily know nothing when they make the contract. Convention seems to demand that the parties know not what they do.

Modern society, this summary seems to show, has been moving toward freedom of contract in marriage. Those phases which concern the state, such as economic provision and children, must be conserved. But time was--and still is in some places--when marriage itself was a tribal or a state matter. Then it became a family matter, determined by the parents, and property and family rights and interests were the important considerations. But parents, knowing by experience that there can be no happiness without security--although there might be unhappiness with it--failed to take into sufficient account the emotional content, and, particularly in the Western World, there developed a certain freedom of contract in making a choice. To-day, when people have come to recognize the necessity of sexual and social compatibility, which cannot be determined in advance, there has come a demand for a further freedom of contract, to which society has responded by more liberal divorce laws. The laws which permit a divorce where parties have not lived together for a certain length of time make the duration of the marriage relation really a matter of consent. They mean in effect that a contract of marriage contains an implied term that it is to continue until the parties consent to its end, and in human relations this means until one party demands its end.

If a person proposed that the law recognize a marriage contract which was to continue until either party desired its termination, he would be regarded as a wrecker of our institutions; but society is doing this very thing--obscurely, perhaps, as an after-effect, not as a preconceived design; blindly, and not with intelligent forethought. Many have suggested that marriages be made harder and divorces easier. But how revolutionary would seem a suggestion that marriage contracts be made in advance, conforming to the teachings of experience, providing for maintenance and custody of children and limited by the understanding of the parties; that those who, for religious or ethical reasons, wished to enter into a life contract be permitted to do so; that those who wished to enter into a contract to terminate by joint consent or at the option of either party likewise be permitted to do so? An objection that this would be dangerous assumes that people choose the present form only because compelled to do so. Individuals are breaking from the old conventions, and the law, usually a laggard by a generation, is following them. In forty-three States desertion is a ground for divorce; in twenty of them, desertion for one year. In seven States, failure or neglect to provide is a ground; in four of them, the period is one year. In some States, if the parties live apart for a certain length of time--in three of them for five years--that is ground for divorce. Is not this divorce by agreement? And by implication, since living together requires the willingness of two parties, the result is a contract which may be ended by either of the parties at any time he or she sees fit--after an intervening cooling period. Thus does freedom creep in by the back door.

Does this work harm to society? There is little difference in the marital or social conditions or in the welfare of children in Norway and Sweden, where there are liberal laws, and in England, where divorce is a long, complicated, and expensive process. No one could discover that he had crossed the State line from New York to Pennsylvania by observation of the state of society, the happiness or apparent duration of marriage, the welfare of children, or the social conventions of the people. Yet in Pennsylvania there was one divorce for every 10.2 marriages in 1922 and only one for every 22.6 in New York. In South Carolina there are no divorces; in Oregon, the number of marriages to one divorce was 2.6; in Wyoming, 3.9; in California, 5.1. In the District of Columbia, the banner section, there were 35.8 marriages to one divorce. There, as in New York, the only ground is adultery. Yet San Francisco society seems as stable as that of Washington. Of course, the figures do not mean that seven times as many Washington couples as California couples, and four times as many New York couples, make a success of marriage or live together when it has ceased to be a success; but rather, that New Yorkers and Washingtonians solve their marital troubles elsewhere than at home. Thus, in Nevada in 1922 there were more divorces than marriages, because people married in other States repented in Nevada.

Whatever effect it may have on society, the extension of grounds for divorce which has taken place in the last decade, and the modern improvement in communication and travel, which opens other States or foreign countries to an increasing number, brings about a situation by which people, though not free to contract, do avail themselves of means which have the same effect. Revolutionary changes occur unnoticed, while our delusions persist and our sense of conservatism is gratified.

Changes in Sex Relations

By Elsie Clews Parsons

Elsie Clews Parsons

_is widely known as an anthropologist and writer. She has contributed largely to scientific journals and in 1922 edited the volume on American Indian Life by various students of the subject. Graduated from Barnard 1896; Ph.D. Columbia 1899. Fellow and Lecturer in Sociology at Barnard; Lecturer in Anthropology in New School for Social Research. She is editor of the_ Journal of American Folklore; _Treasurer of American Ethnological Society; President of Folk Lore Society. Is author of “The Family”; “The Old-Fashioned Woman”; “Fear and Conventionality”; “Social Freedom” and “Social Rule.”_

CHANGES IN SEX RELATIONS

BY ELSIE CLEWS PARSONS

The other day I listened to a conversation on marriage and divorce between a well-known feminist, her daughter, and an Episcopal clergyman. The celibate cleric and the younger woman were in fair accord: the institution of marriage was invaluable to society and had to be protected. Let there be no divorce, said the cleric, on any ground, at least within the church; children should be cared for by both parents, divorce being sought only as an ultimate recourse, said the girl, who was two years married and had a son.

The feminist was biding her time. Finally she said: “So much for the institution. What of the actual sex life? No divorce and continence or no divorce and intimacy with another?”

“The first, of course,” said the cleric.

“Not at all; the second,” said the girl. “And you, mother?”

“Oh, on the whole I’m for the brittle marriage as against the lax, the American way against the European. But most of all I am for tolerance in sex relations and for respecting privacy. Why not all kinds of relations for all kinds of persons? Just as there are now, but with respect or tolerance for the individual and without hypocrisy.”

“Even if we did not agree,” the cleric said later to the feminist, “we could talk about it as twenty years ago we could not. So much to the good.”

“So much to the bad,” said the girl’s father, still later; “better for all of us the old reserve.” The speaker was a lawyer with divorce cases in his practice.

Had we not here a mingling of currents from law, the church, feminism, and the younger generation which illustrates what divergency of attitude on sex and sex institutions or practices may exist to-day, even within the same cultural and local circle? Include circles of different education and locality and although the range of difference would be no larger the expressions of opinion would vary. Is the variation in opinion due to variation in experience or is it due to that contemporaneous lifting of the taboo on discussion which characterizes not only our talk about sex but about other interests as well? A remarkable and indisputable change of attitude, this release from verbal taboo, which often gives us a sense of change in general greater perhaps than the facts themselves warrant.

In the conversation I quoted the women were on the whole the radicals, the men on the whole the conservatives. This alignment was far from typical, I think, and yet in contemporaneous life, whether or not in opinion, women have been the exponents of cultural change in sex relations. The increase in the divorce rate, it seems probable, has been effected predominantly by women; about two-thirds of the total number of divorces are granted to women. (Of course the tradition that it is decent for the man to let the woman get the divorce must not be ignored in this connection.) This increase in divorce may indicate a changing attitude toward the criteria of marriage on the part of women. Women may be demanding more of marriage than in the day when they had little to expect but marriage. In other words, marriage standards mount as marriage has other relations to compete with. At any rate in the talk of women it seems to me that desire for integral satisfaction in marriage is more consciously or realistically expressed than ever before. Emotional and sexual appeasements are considered as well as social or economic advantage. What of the part played by women in changes in sex relations outside marriage?

Unfortunately, we have no dependable statistics of prostitution, but whatever decrease there has been in prostitution, and opinion is that with the passing of segregated districts there has been a decrease, may be, on the whole, put down to women, if only indirectly through an increase in illicit relations. Illicit relations are not subject to statistics, but that there has been an increase in them in this country in this century will be generally accepted, likewise that in this, too, the increase is due to women, alike more willing to participate in such relations and more tolerant of them in others. Again those curious suits for alienation of affection appear to be brought against women as much as against men; and theories of seduction by men have long since been sounding archaic to our ears. Even on the screen, the great present vehicle of traditional manners and morals, although rape is always in order, seduction is infrequent. Seduction with its complement of marital honor has been rendered an anachronism, through women.

The theory of seduction is affiliated with the proprietary theory of woman and, needless to say, this general theory has been undergoing considerable change for several decades. To-day women are not only not property, they are property holders, and property holding has become a significant factor in the social independence of women. Of this social independence, independence in mating is the most recent expression, more recent even than political independence, and less fully realized or accomplished. Indeed it would be rash to predict how this type of independence may be expected to come about; apart from the gesture, sometimes gay, sometimes merely comic, of keeping one’s name in marriage, there is no conscious feministic movement, in this country at least, toward freedom in sex. The political emancipation of women came to us as a reflex from abroad, largely through England. Whatever the political effect of militancy in England, without the advertisement of the British suffragette American women would be voteless to-day. Quite likely the direction of emancipation in mating may be determined likewise from abroad, perhaps from innovating Scandinavia or from Soviet Russia, where the last legal word has been said on sex equality.

In the soviet laws on marriage and domestic relations there is no mention of suit for breach of promise or for alimony whereby woman proclaims herself a chattel, and according to the soviet code husband as well as wife is entitled to support if incapacitated for work. Incapacity for work is the sole condition which entitles either spouse to support. In other words, the Russian state has interested itself not in maintaining the proprietary theory of woman; but in providing for the care of man or woman in distress. Of such clear distinction American law is innocent. In American law the husband is still the provider and in this law lags but little behind current opinion, which holds that a married woman should work only when she has to. Dr. Herskowits tells me that this American attitude is so well represented in the Negro population of Harlem that in gathering statistics of employment as soon as he learns the occupation of the husband he can predict whether or not the wife is at work. Low-paid employment for the husband means wage-earning by the wife, and highly paid employment means that the woman is not a wage-earner. Surveys in other parts of the country have shown the same condition. These surveys have been made among wage-earners, and concerned primarily with the margin of subsistence; but familiar enough is the record in other economic classes of the persuasion that marriage exempts a woman from industry or professional activity. The standing controversies about married women as school-teachers are fully documented instances. The Harvard prize play acted last year on Broadway hinged on the rigidity of the alternative of a man marrying and sacrificing his career or pursuing his career and sacrificing his love. There was not the faintest suggestion that the woman might contribute to the family income and so render marriage and career economically compatible. The young couple, to be sure, belonged to smart Suburbia, economically a conservative circle; but there was no indication in the play that the university intelligentsia did not hold to the theory of wifely parasitism, nor that audiences might question the theory. And I incline to think that few in those Broadway audiences, although drawn as they were from fairly composite circles, did question. Wifely parasitism is holding its own.