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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

Historical Perspective and Current Trends in the Legal Process of Divorce
Sanford N. Katz

Changes in the Definition of Marriage

Today one legal definition of marriage as being an economic partnership, although not necessarily of equals, is quite different from that which considered the relationship one of "status," totally governed by state laws which favored the husband.2 Until the past 30 years, no serious thought could be given to a couple's formally defining the internal workings of their own marriage and family responsibilities with the expectation that the state would sanction them.3 With regard to legal matters external to the relationship, the state, probably manifesting the hierarchical nature of marriage, treated marriage as "one," and that one was the husband. Basically, a married woman's legal identity was submerged in her husband's. For example, only about 25 years ago, upon marriage, a wife assumed her husband's domicile (permanent state residence), not because she had any choice in the matter, but because the law required it even if she had never lived in her husband's state.4 She assumed his name, again, not because she alone or with her husband chose it, but because of custom and, in some states, by law.5 Simple matters like acquiring credit through a credit card, taking title to real estate (like the marital home), or registering to vote could not be accomplished unless both husband and wife shared the same last name.6 Although there may have been no legal basis for some of these rules, the custom was established by the actions of officials (like clerks in courts or in city halls), and these actions took on the appearance of law. To change the official pattern, a woman would have to initiate some legal action like seeking an opinion of the state attorney general on the legality of some official's conduct or suing the official and requesting the court to order the official to make the necessary changes in a record.

The internal (that is, personal) relations between husband and wife during marriage also reflected a dependent and subordinate role of the wife (which the law sanctioned) rather than one of equality.7 A wife's role was to be at home, raise children, contribute to the marital enterprise, and basically obey her husband. Obedience was synonymous with submission. Thus, a married woman could not be raped by her husband because a wife's body belonged to her husband.8 The remedy for physical abuse was divorce; yet except for using cruelty as a ground for a divorce (which was not easy to prove), there were few legal opportunities for a wife to obtain relief from her husband's brutality.9

Changes began to occur in the 1960s (with the mandatory child abuse reporting statutes) which limited the notion that family privacy was supreme and not open to public intrusion. That is to say, before the 1960s, relations (namely, how people conducted themselves) between husbands and wives and parents and children were considered to be private, not public, matters. Family violence statutes enacted within the past 25 years changed the private nature of family relations. They provide a wife with a civil remedy to protect her from an abusive husband.10 Child abuse and neglect statutes of various kinds allow for public intervention into the parent-child relationship to protect children.11 It can no longer be said that American law so insulates a family from public scrutiny that all forms of violence can occur with legal impunity.12 Of course, the violence must be discovered and someone must take action by seeking the assistance and cooperation of the appropriate official agency.13