Our time has given to the unmarried woman the opportunity of making her own living, a legal status, and civil rights. But the marriage law dates from a time when women had none of these things. The married woman, thus, under this law, now occupies a position in sharp contrast to the independence of the unmarried, which has been acquired since that time.
Our time has displaced the ancient division of labour, by which the wife cared for the children and the husband provided maintenance. But the law of marriage dates from a time when this division held full sway and when it was, therefore, almost impossible for a woman to receive protection for herself and her child otherwise than in matrimony. Now society has begun to provide such protection for unmarried mothers, and the renunciation of liberty by which the wife purchases the protection of marriage is seen to be not only more and more unworthy, but also unnecessary.
Our time has recognised more and more the importance of every child as a new member of society and the right of every child to be born under healthy conditions. But the law of marriage was framed at a time when this aspect had not presented itself to the consciousness of mankind; when the illegitimate child was regarded as worthless, however superior in itself, and the legitimate child as valuable, whatever might be its hereditary defects.
Our time has recognised the value to morality of personal choice. It admits as really ethical only such acts as result from personal examination and take place with the approval of the individual conscience.
The marriage system came into being when this sovereignty of the individual was scarcely suspected, much less recognised; when souls were bound by the power of society, and when compulsion was society’s only means of attaining its ends. Marriage was the halter with which the racial instinct was tamed, or, in other words, the instinct of nature was ennobled by being brought into unity with social purpose.
Now love has been developed, the human personality has been developed, and woman’s powers have been liberated.
On account of woman’s present independent activity and self-determination outside marriage, the law must provide that the married woman shall retain her freedom of action by giving her full authority over her person and property.
On account of the individual’s dislike of being forced into religious forms that have no meaning for him, the legal form of marriage must be a civil one.
On account of the individual’s desire of personal choice in actions that are personally important, the continuance of marriage—as well as its inception—must depend upon either of the parties and divorce be thus free; and this all the more, since the new idea of purity implies that compulsion in this direction is a humiliation.