International: Definitions of Marriage, Discrimination, Tradition, Marriage and Human Rights, Legal Strategies

Definitions of Marriage
Any attempt to reform discriminatory marriage laws must take account of the fact that the social and legal meaning of marriage varies from society to society and has altered over time. In some countries marriage is a simple civil contract, affirmed before a state authority, and open (with certain restrictions, usually involving the ages, health, or blood relationship of potential partners) to any two persons of the opposite sex. By contrast, some countries recognize only marriages performed by religious authorities.

Moreover, in addition to civil marriage, many countries recognize so-called “common-law” marriage, also called “cohabitation” or concubinage. These countries extend certain benefits associated with marriage– usually economic ones, especially pension and inheritance rights– to cohabiting partners who have not entered into a civil marriage. Under some legal systems, cohabiting partners need not actually be engaged in a sexual or emotional relationship in order to claim these benefits.

The benefits and burdens which marriage confers, as well as the ways in which they are shared between the partners, also differ widely. Access to divorce remains difficult or impossible in some polities; in some countries, sexual relations outside marriage (adultery), as a breach of the marriage contract, are punishable in criminal law. Marriage is often an unequal contract, in which one partner is deprived of rights before the law, or surrenders those rights to the other partner; in some cases, it is an involuntary contract, which can be affirmed against the will of one of the parties– usually the woman. In many countries the institutions that define marriage incorporate legacies of gender bias so that women face extensive discrimination within marriage. Such discrimination can include unequal rights to property and other assets; deprivation of economic or physical independence and of sexual autonomy; unequal responsibility for child care and housework, and unequal rights to custody of children; and impunity for physical or sexual violence committed by men within the marriage relationship. Forced marriage is one particularly flagrant infringement of an individual's right to enter into partnership with the person of one's choice.

How Legal Institutions Discriminate Against Same-sex Couples
In most countries married couples exercise certain rights which are denied to single people, or to people in non-marital relations of association. These rights may be civil (such as the right not to have a spouse testify against one in a court of law), social (such as adoption rights), or economic (such as the right to file a joint tax return). They vary widely from country to country. They may include (but are not limited to) rights to joint custody of children; to adopt children; to inherit one another’s property; to spousal immigration rights including the right to extend one’s citizenship to one’s spouse and children; to power of attorney, co-ownership of property, execution of living wills, and medical decision-making power in cases of incapacitation; to share insurance and pension benefits; and the right to receive and dispose of a spouse’s body in the event of death.
Same-Sex Couples and Tradition
ame-sex unions have been recognized by families and local communities throughout history and all over the world. The form this recognition takes varies widely, and may be informal (for example, integration into community life) or formal (for example, registered partnership). This fact sheet concentrates on formal legal protections.

Many religious organizations celebrate same-sex unions. However, a religious blessing does not guarantee civil and human rights, since no civil authority currently recognizes religious celebrations of same-sex unions for legal purposes. Governments that have created registries for same-sex couples have approached the issue in terms of equal protection and non-discrimination, and have avoided impinging on the rights of religious organizations to define and control their own doctrines and policies with regard to same-sex unions.

Marriage and Human Rights
Legislators, policymakers and human rights advocates have begun to address both inequities within the marriage relationship, and inequities between people of different marital statuses. These two processes must be seen as connected. They involve ensuring that marriage is a contract entered into freely by both partners, and that restrictions on who can marry are justified only by the most compelling state interests. They also involve ensuring that legally recognized relationships preserve and protect the rights–including the privacy, dignity, and autonomy– of both partners, with fairness toward each.

The legal strategies used to address these concerns vary, depending on which relationships are already legally recognized in each country, and the forms such recognition takes. Some marriage law reform efforts focus on:

  • Ending the practice of forced marriage.
  • Equalizing laws and policies which give benefits exclusively to married people, discriminating against single people.
  • Establishing social, economic, and legal benefits for domestic or “common-law” partners (that is, to individuals who cohabit or are in a close emotional relationship) regardless of their formal status before the law.
  • Establishing legal same-sex couple registries that differ in form from civil marriage, and carry certain social benefits.
  • Extending the definition of civil marriage to include same-sex unions.

Click here to return to our fact sheet on where you can marry.