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Is Marriage Becoming Obsolete?

Nearly 40 percent of Americans think marriage is becoming obsolete. Are they right? Or is marriage just undergoing some significant changes?

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And marriage is something many people still want, even though they think no one else will. While 44 percentof people under 30 think marriage is becoming obsolete, only 5 percent of them don't want to marry. (Here's Belinda Luscombe talking about the story and its many intriguing statistics.)

In light of this, one has to wonder if the word “traditional” was something people mentally put in front of “marriage” when taking this survey. Traditional marriage may be on shaky ground but people will always want to celebrate their love. In the age of customization it might be time for marriage to have more variations.

It’s not a new idea.

In 1975 Time ran a story about people wanting to customize their marriage contracts, including provisions about affairs and renewal intervals. One included the phrase “Ralph agrees not to pick, nag or comment about Wanda’s skin blemishes.” The article says that even with a customized contract courts would likely hold up whatever traditional marriage law is, so if the contract says you can have affairs your spouse can probably still claim adultery in court and win a divorce. Attorney Brenda Feigen-Fasteau advised in the piece that staying unmarried would be more likely to make the contract be treated like any other contract.

So, is that still valid? Would the law still be less likely to uphold a private agreement between married people, hence allowing customization of the age-old tradition?

“Pre- and post-nuptial agreements are legal in Florida when dealing with monetary assets. Dealing with rights to have sex outside the marriage, etcetera…probably not,” says Tom Dyer, Orlando attorney and publisher of the LGBT newspaper Watermark. "I have drafted many 'cohabitation agreements' for same-sex couples who do not have the ability to marry in Florida. They are very much like prenups in that they mostly address what would happen with assets in the event of a breakup, and they are generally upheld by courts as a contract between two adults... almost as if they'd formed a business together. I've never had a couple ask that open relationship provisions be included.”

Kevin Maillard, associate professor of law at Syracuse University and member of the board of directors of the Alternatives to Marriage Project, says that the 1975 Time story would still be valid, largely because courts tend to side with whatever keeps marriage traditional and strong. Courts, he says, will often go all the way back to the 1888 case of Maynard v. Hill as a reference point on the subject of marriage.

“Though there is this growing interest in diversity of ways that people can exist in families, courts still adhere to this old-fashioned notion that marriage is the foundation of society, so even in a state like Massachusetts that does have same-sex marriage, the entire case, the opinion, the wording, is all about how important marriage is in the United States. So even though they’re expanding the idea of who can get married and who is eligible to get married they’re still saying that people need access, everyone needs access to this because it’s so incredibly important.”

Also, if for some reason two people can't marry, Maillard says, “if they are cousins or they’re two men or one of them has some kind of other non-qualifying characteristic, they could contract because there’s no other way for them to get married and generally courts would want to protect those people.” For someone who could get married but might want to customize an agreement to say, hypothetically, include extramarital relationships, “I would say no because it’s not approximating what kind of regular or traditional marriage would be.”

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