Wednesday, 16 June 2010

Marriage prohibitions

No Right Turn argues for the adoption of his marriage equality bill, which would have New Zealand follow Iceland in allowing not just civil union but also gay marriage. My first preference is of course to get the state entirely out of the business of sanctifying unions, but if it's going to be in that business, I'm with NRT.

In his proposed bill, though, I found a surprising bit: Schedule 2, Forbidden Marriages. But it follows entirely from the current legislation. Here's the full current list of forbidden marriages:
1. A man may not marry his
(1) Grandmother:
(2) Grandfather's wife:
(3) Wife's grandmother:
(4) Father's sister:
(5) Mother's sister:
(6) Mother:
(7) Stepmother:
(8) Wife's mother:
(9) Daughter:
(10) Wife's daughter:
(11) Sons' wife:
(12) Sister:
(13) Son's daughter:
(14) Daughter's daughter
(15) Son's son's wife:
(16) Daughter's son's wife:
(17) Wife's son's daughter:
(18) Wife's daughter's daughter:
(19) Brother's daughter:
(20) Sister's daughter.

2 A woman may not marry her
(1) Grandfather:
(2) Grandmother's husband:
(3) Husband's grandfather:
(4) Father's brother:
(5) Mother's brother:
(6) Father:
(7) Stepfather:
(8) Husband's father:
(9) Son:
(10) Husband's son:
(11) Daughter's husband:
(12) Brother:
(13) Son's son:
(14) Daughter's son:
(15) Son's daughter's husband:
(16) Daughter's daughter's husband:
(17) Husband's son's son:
(18) Husband's daughter's son:
(19) Brother's son:
(20) Sister's son.
There's some clarification later on noting that wherever husband or wife is used, the prohibition extends also to civil union partners.

Now, some of these prohibitions will be in place because of heightened risk of foetal abnormalities when parents are close relations. But, we don't forbid marriage of those who are both carriers of the gene for other abnormalities: otherwise, we'd require carriers of the sickle-cell gene to check whether their partner were also a carrier. Moreover, none of the genetic arguments would continue to hold for same-sex unions.

And, a whole lot of the forbidden marriages seem entirely odd: you're forbidden from marrying your wife's mother. Now, I don't find that a binding constraint [nor do I now or have I ever found any of these to be binding constraints]. But it still seems really odd.

The best argument for some of these prohibitions would be the threat of undue power: a sicko raising a child to be his future wife. But the regs do seem rather overbroad for that. You're a single adult, your rich grandfather marries a nice young lady before dying a year later. You're forbidden from marrying her: she was your grandfather's wife.

I can imagine an argument that a bright line rule is efficient in that relatively few legitimate unions (by legitimate, I mean consenting adults) would be prevented while the costs of checking for undue power may be high; but surely an alternate rule of the form "forbidden if either party is under the age of 21" would achieve the same purpose. Is there any sense to the list of prohibitions beyond "some of these could be yucky"?

Shouldn't NRT be going a bit further in his recommended changes?


  1. Dang! Just deleted a really long comment because of spelling issues, and now can't re-write it.

    Ok, let's start again..

    Many moons ago, I studied these types of questions in an area of law known as Conflict of Laws: what happens when the laws of different legal systems collide. Things like, what happens if the son marries the dead father's wife (his step-mother), and they temporarily reside in another country which prevents such marriages from taking place. If they have children there, then the issues of domicile arise. Because they're not resident, the child is not a citizen of the foreign nation. If the marriage is not recognised, then the normal rule that the child inherits the father's domicile is not recognised. And the default domicile becomes the mother's domicile, which may raise inheritance / custody / other issues.

    Its really Jerry Springer stuff! Fascinating! Turns out, I think, under the principle of Commity of Laws (we'll recognise your laws if you recognise ours).

  2. Civil unions in NZ are superior to marriage as they are functionally equivalent but open to more people.

    Let's not extend marriage to same-sex couples, let's get rid of marriage completely and have everyone being civilly uned.

    They can then get whatever form of religious marriage that suits them.

    (Note: I say this as one of the first people in the country to get a civil union.)

  3. Dammit! That's what happens when you write these comments at work... someone comes along and distracts you....

    and add to the above comment:

    so the marriage, even though illegal in the foreign country will be recognised if the considered valid in the country of origin

  4. @James: I suspect that the list of prohibitions is reasonably similar across a whole lot of countries. But I hadn't thought of the additional problems of differential restrictions. Yikes.

    @Thomas: That sounds pretty reasonable too. Susan and I were wed in Pennsylvania under rules put in place for Quakers. In short, we produced a marriage contract which everyone in attendance signed. We had no celebrant: we instead were married by the recognition of our friends and family; the State then certifies the contract later. I really really liked that arrangement. No god, no government, just us and our friends and family. That's how it should be.

    @James: I'll delete formally the comment you'd deleted for sake of tidiness.

  5. @ Eric,

    Yeah, looking at the Marriage Act, the Commity of Laws exception is recognised in S15(4) Marriage Act (

    "No marriage not forbidden by the provisions of Schedule 2 to this Act shall be void only on the ground of consanguinity or affinity."

  6. What I particularly like is that, given enough time and contemplation, NRT is probably going to end up with lists of prohibition that align nicely with biblical principles!

  7. @Anon: That's the list from the CURRENT legislation; NRT just hasn't changed the current schedule 2. Whether that's 'cause he approves of it or 'cause fighting that battle would be utterly pointless in the current climate can't be determined from the observation.

  8. I point out that for the sake of consistency, if a man can't marry his (1) Grandmother:
    (2) Grandfather's wife: etc cos it's icky, a woman shouldn't be able to either.

    Easy solution: merge the two lists into a "A person may not marry their:"