Course:HIST104/Marriage Licence
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| HIST 104 | |
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| Instructor: | Joy Dixon |
| Frederik Vermote | |
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There are numerous objects that are a part of everyday life and that are a product of “cultures in contact” including books, technological products, food, and fashion items; however, very few of these objects can match the significance of a simple piece of paper, the marriage certificate. This is due to the fact that marriage certificates embody the political and social environment of a specific point in history and are a testament to the beliefs, morals and customs of a particular nation and culture. The BC marriage certificate in particular illustrates how a western democratic society has developed and changed throughout time, focusing on equality and becoming more inclusive.
According to B.A. Robinson, unions between same-sex couples in BC prior to 1997 were not recognized by the provincial government which meant that “gay and lesbian couples would not receive the same legal status with regards to child custody, maintenance, and access” [i] as well as any tax deductions, benefits standard in any common-law union between a heterosexual couple. An amendment to the definition of ‘spouse’ in 1997 to include same-sex couples and the introduction of Bills 31 and 32 that “recognized ‘the marriage-like relationship between persons of the same gender’ in the Family Relations Act and the Family Maintenance Enforcement Act” [ii] changed this and was the catalyst necessary for further equality measures. Robinson further describes how a petition to overturn the federal Marriage Act was launched by a group of gay and lesbian couples that were denied marriage licenses in 2001. This group argued that the Marriage Act infringed on their legal rights under the Charter of Rights and Freedoms by not allowing them marital status, a statement that caused the slow judicial process of same-sex equality and recognition. The petition was brought before the BC Supreme Court and was denied because according to the court, “the definition of marriage was fixed for all time by the constitution of 1867, and cannot be changed to allow same-sex marriages” (ibid); however, the Court of Appeal for British Columbia overturned this decision and in 2003 the court officially recognized same-sex marriages stating that the previous “definition of marriage as between ‘one man and one women’ violated the Canadian Charter of Rights and Freedoms”.[iii] A similar slow and dramatic allowance of same-sex marriage can be seen in the case of Germany.
Interestingly, pre-Nazi Germany, compared to other European countries, was very tolerant towards homosexuals. Lucas Ginn explains how "greater tolerance emerged for sexual variations and expression and it was in the 1920's that mainstream gay life came out of the closet, out of the shadows of fear"; however, German law did not reflect that optimistic notion due to paragraph 175 of the German penal code which stated that sexual interactions between same-sex couples are punishable by harsh prison sentences. Furthermore, with the rise of the Nazi Party in the 1930's antigay laws began to be strictly enforced leading to "a purge of homosexuals within the Nazi ranks" [iv] and the deportation of homosexuals to concentration camps. The Guardian says that Nazi style persecution of homosexuals lasted until the 1969, stating that gays "continued to be persecuted by the same law" that Hitler enforced. German reunification marked the resurgence of acceptance, inclusion and the idea that that all citizens should be treated equally under the law. Germany’s first gay marriage took place in 2001 the same time same-sex couples were given "the same inheritance and tenants' rights as heterosexual couples"[v], "a state pension to widows and widowers"[vi] and the ability of "homosexuals to adopt the biological children of their partners".[vii]
As well as demonstrating Canada’s relatively liberal values, as seen through the legalization of same sex marriage, British Columbia’s marriage license also illustrates the restrictive idea of “family values” within Canadian society. One of the ways that the marriage license demonstrates the accepted norms and “family values” within Canada is evident when examining the way the law treats the practice of polygamy. Polygamy is defined in the OED as, “the practice or custom of having more than one wife or husband at the same time”.[viii] As stated by Amy J Kaufman in her article, “Polygamous Marriages in Canada”, “more than the same-sex marriages, polygamous marriages challenge the typical family units around which Canadian society is currently organized”.[ix] The fact that polygamous marriages are seen to be threatening to the traditional family unit is evident by their illegality in Canada. While “prominent Vancouver lawyer Richard Peck has recommended charges not be laid against unspecified members of the Bountiful commune”, a community in British Columbia that is now famous for its family practices, “legality of polygamy in Canada has for too long been characterized by uncertainty”.[x] This quote proves significant because while the law is reluctant to prosecute polygamous communes, it also refuses to grant the rights of a legal acceptance and marriage. This is not written in favor of the legalization of polygamous relationships, but rather to demonstrate that with thorough analysis common items and documents, such as a marriage license, can unlock the values, and determine what is considered normative within a society.
Along with indoctrinating what are seen to be “normal” family values, the historical meaning of the marriage license has changed greatly over time, for women; historically marriage meant the loss of many rights. It was by law that a husband would be in control of the wife’s assets, and the wife would lose her personal bank accounts and her own private property. This in return, meant that a man would have a great advantage if he married a woman that was economically stable, and his own assets would increase greatly through marriage. A woman could also not sue anyone, sell her own property, and start her own business, at least not without the approval of her husband. These laws which were in place up until about 1890,[xi] were in many ways flawed, especially considering the fact that an unmarried woman had all the rights that a woman who would marry lost, including the right to hold a bank out, own property and sell it for profit, start a lawsuit, and run her own business.
Not until 1978 did these laws change, and married women gained the same rights as any unmarried woman had. Husbands could lose the right to use his wife’s personal assets as a mean of taking up loans, and women became more independent in the household. The married women’s rights in British Columbia was a direct response to the trend that had been going on in Canada since the turn of the 20th century, as the Married Woman’s Property Act had been passed in territories such as Manitoba, Prince Edward Island, Saskatchewan, and Alberta.[xii]
As is clearly evidenced by the aforementioned arguments, the marriage license is telling of the cultural values of a society. While the investigation has been largely focused on the Canadian institution of marriage, the historical progression of marriage practices in other countries is as equally culturally reflective. The case of Afghanistan illustrates how a mix of political instability, tribal conflicts and traditional beliefs create challenges in procuring marriage certification. The practice of marriage registration in Afghanistan is not widespread. This is due to traditional beliefs that consider marriage as a private affair. For instance, a Finnish report documents an Afghan man saying “that a government-issued marriage document was unnecessary for his daughter because everyone would know she was married by virtue of her wedding celebration and a wedding video”.[xiii] This quote demonstrates the lack of value Afghan people place on a marriage license. Hence, the interference of the state in matrimonial affairs has had limited gains.
In order to trace the historiography of marriage licenses in Afghanistan, religious texts play a crucial role. The Holy Quran states specific guidelines that should be recorded in a marriage contract.
“The longest verse of the Holy Quran (Verse 282, Surah Baqarah) mandates that any agreement where loan and credit exists must be registered as a contract and two witnesses must validate and sign it. In a marriage contract, financial matters such as mah’r and alimony, spouses' work and conditions to the marriage or the wife's dowry or otherwise are described”.[xiv]
From the quote above, we can see that financial matters took precedence in marriage documentation. However, this would be modified with the introduction of the 1977 Afghan Civil Code. “The Afghan Civil Code introduced a formal marriage contract called the Nikahnama which outlines provisions of alimonies, mah’r, divorce and many other responsibilities of spouses, such as limitations on the number of wives the husband can marry or the wife’s ability to work or study after marriage”.[xv] The marriage contract expanded to include divorce and privileges for women which were ignored before. This was a breakthrough because historically women’s statuses in Afghanistan have been challenged continuously. More specifically, division between traditional and progressive practitioners of Islam had impeded the establishment of egalitarian rights for women.[xvi] This has led to the involvement of International Human Rights and Women’s Rights groups. A marriage registration can be a source of empowerment for Afghan women. “It could be used as a mechanism to counteract under-age marriage, forced marriage, and the practice of bad”.[xvii] However, there are various barriers in implementing marriage registration. The current instability in the nation makes it hard to regulate, amend and enforce registration. Anastasiya Hozyainova outline three major barriers: 1) State institutions reach at best half of the population 2) Registration is lengthy and costly process and thirdly, lack of awareness about the availability of marriage registration. For these reasons, the challenge still remains.
[i] B.A. Robinson, “Homosexual (Same-Sex) Marriages in Canada, British Columbia” Ontario Consultants on Religious Tolerance, November 2, 2006, http://www.religioustolerance.org/hom_marb6.html. [ii] B.A. Robins. [iii] Susan Munroe, “Same-Sex Marriages Now Legal in BC,” Canada Online, 2003 http://canadaonline.about.com/cs/samesex/a/bcsamesexmarleg.html. [iv] L Ginn, "Gay Culture Flourished In Pre-Nazi Germany," California's Gay and Lesbian Weekly Newspaper, October 12,1995, http://www.qrd.org/qrd/culture/1995/gay.culture.flourished.prenazi.germany-10.95. [v] BBC News, August 1, 2001, http://news.bbc.co.uk/2/hi/europe/1468031.stm. [vi] News 24, October 29, 2004. http://www.news24.com/News24/World/News/0,,2-10-1462_1613010,00.html. [vii] News 24. [viii] Oxford English Dictionary, rev., s.v. “polygamy.” [ix] Amy J. Kaufman, “Polygamous Marriages in Canada,” Canadian Journal of Family Law 21, no. 5 (2005): 315, http://www.heinonline.org/ (accessed July 22nd, 2011). [x] Ken MacQueen, “Is Polygamy Legal in Canada,” Macleans, August 2nd, 2007, http://www.macleans.ca/article.jsp?content=20070801_225028_11328 (accessed July 22nd, 2011). [xi] John-Paul Boyd, "Marriage, Seperation & Divorce," JP Boyd's Family Law Resource, n.p., n.d. (accessed 26 July 2011). [xii] "Human Rights in Canada: A Historical Perspective," Canadian Human Rights Comission, n.p., n.d. (accessed 26 July 2011). [xiii] Immigration of Refugee Board of Canada, "Afghanistan: Issuance of Birth Certificates and Marriage Certificates; Types of Documents Required by the Applicant in Afghanistan or in Embassies to Obtain Official Documents," 18 Dec. 2007, (accessed 28 July 2011) http://www.unhcr.org/refworld/docid/47d6543c22.html. [xiv] Rights & Democracy. Marriage Registration and the Marriage Certificate. Rep. Feb. 2011. (accessed 26 July 2011), http://www.dd-rd.ca/afghanistan/pdf/Rights&Democracy Nikahnama.pdf. [xv] Rights & Democracy and Anastasiya Hozyainova, The Marriage Contract: Process and Recommendations for Its Implementation. Rep. Feb. 2011. (accessed 26 July 2011), http://www.dd-rd.ca/afghanistan/pdf/A_Woman_s_Place_Afghanistan_Feb_2011.pdf. [xvi] Rights & Democracy and Alexandra Gilbert, Reforming and Drafting Laws in the Post-Taliban Era: The Role of Coalitions, Rep. Feb. 2011. (accessed 26 July 2011), http://www.ddrd.ca/afghanistan/pdf/A_Woman_s_Place_Afghanistan_Feb_2011.pdf. [xvii] Rights & Democracy and Anastasiya Hozyainova.