Abstract

The law has traditionally privileged civil marriage over functionally indistinguishable informal unions. I argue in this article that the traditional approach is incompatible with the liberal ideal of state neutrality. I also explain why some possible solutions to this problem are not satisfactory. The problem is not cured by ensuring that the rules governing access to marriage are not discriminatory or by recognising forms of marriage other than civil marriage, such as religious marriage and customary marriage. Nor is it a solution to retain the official institution of marriage while extending its financial and legal benefits to the unmarried, since this leaves the symbolic superiority of marriage intact. Finally, it is not satisfactory to leave family life to private ordering because while this would satisfy the demands of state neutrality by treating all domestic relationships equally, it would fail to recognise that principles of justice apply within domestic relationships. I conclude that there is only one way to overcome the defects of the traditional approach which is consistent with both state neutrality and the recognition that the vulnerable members of families are owed protection as a matter of justice. This is to abolish marriage as an official institution while extending the benefits and protection traditionally reserved for marriage to all comparable caregiving domestic relationships.