The history of marriage as institution

The Code of Hammurabi devotes nearly seventy paragraphs to marriage and family. Marriage requires a written contract; without one, the woman is not a wife. Bride-price flows from groom's family to bride's. Dowry flows with the bride and remains her property, recoverable on divorce or widowhood. Adultery by the wife is capital; by the husband, contextual. Divorce is permitted but expensive for the husband, who must return the dowry. The code is striking for treating marriage as a property arrangement with detailed contingencies, not as a sacred bond. The bride and groom are persons with legal interests; the surrounding families are stakeholders. This is the deep template of marriage as institution: a structured arrangement between kin groups, witnessed by the state, with money and children as the principal stakes.

Roman law established a principle that would echo across Western legal history: consensus facit nuptias, consent makes marriage. The union required the agreement of both parties (and traditionally their paterfamilias) but, once formed, was simply the recognized cohabitation of the spouses with marital intent. No ceremony was strictly required. Divorce was a private act; either party could simply leave and the marriage was over. Augustan moral legislation tried to push Romans toward marriage and childbearing through tax incentives and penalties for celibacy, with limited success. Roman marriage was contractual, dissoluble, and grounded in the will of the parties — closer in some ways to modern marriage than the medieval Christian form that displaced it.

Witte traces the Church's slow capture of marriage from the fourth century onward. Early Christians inherited Roman marriage practice; the Church added blessing but not jurisdiction. By the eleventh and twelfth centuries, canon law had developed a full theology of marriage as sacrament, with the priest as minister, the spouses as effective ministers to each other, and the union as indissoluble. The Fourth Lateran Council in 1215 required banns — public announcement before marriage — to prevent clandestine unions. The Council of Trent in 1563 made the priest's presence essential for validity. This thousand-year arc moved marriage from family law to church law and made the Western marriage ceremony the religious event it remained until the modern state reclaimed jurisdiction.

Duby's central insight: medieval marriage was the site of a long, fierce conflict between two models. The aristocratic model treated marriage as a tool for alliance and lineage, with divorce, repudiation, and concubinage as available moves. The clerical model insisted on monogamy, indissolubility, and free consent. The conflict ran through every European court for centuries. Kings repudiated wives who failed to produce heirs; bishops denied them remarriage. Nobles married within forbidden degrees of kinship for political reasons; canon lawyers annulled the unions when politics shifted. The Church eventually won the doctrinal battle, but the aristocratic instinct never disappeared — it just learned to operate within or around the rules.

Luther rejected marriage as sacrament and called it a worldly thing, governed by civil authority. This re-secularized marriage in Protestant Europe without making it less serious; Luther considered marriage a divinely instituted estate, but its administration belonged to the prince, not the priest. Calvinist Geneva produced a marriage law that combined moral rigor with civil jurisdiction, including a consistory court that policed marital behavior with intrusive zeal. The Reformation also reopened divorce in Protestant lands — limited, fault-based, but real — three centuries before Catholic jurisdictions would do the same. The institutional consequences echo still in the differing divorce rates and marriage cultures of historically Protestant versus Catholic regions.

Before 1753, an English marriage could be valid without church, banns, or witnesses — words of present consent between a couple were enough. This produced chaos: clandestine marriages, bigamy, disputed inheritances, and a thriving black market in Fleet Prison weddings performed by debt-imprisoned clergy. Hardwicke's Marriage Act required Anglican ceremony, banns or license, parental consent for minors, and parish register entry. The Act consolidated English marriage as a publicly visible, state-recorded event. It also excluded Catholics, Jews, and dissenters from valid civil marriage until later reform. Cressy and Stone both treat the Act as the moment English marriage became fully institutional in the modern sense.

Stone's controversial thesis: between roughly 1500 and 1800, English marriage shifted from patriarchal alliance to companionate partnership among the gentry and rising middle class. Spouses began to be expected to like each other, share emotional life, and form their primary affective bond with each other rather than with parents, siblings, or same-sex friends. Critics have pushed back on the timing and on whether emotional warmth was really absent earlier. But something did change: the diaries, letters, and conduct literature of the eighteenth century reveal an ideal of marital companionship that the seventeenth century would have found indulgent and the fifteenth century baffling. This is the cultural foundation on which romantic marriage would be built.

By the early nineteenth century, marrying for love had become the middle-class Western default — at least as ideal, if not always as practice. Coontz argues this was a genuine revolution: for the first time in human history, a major culture organized its most important kin institution around the emotional preferences of the people contracting it. The shift was driven by industrialization (which pulled production out of the household and made marriage less an economic necessity), Enlightenment individualism (which made the self's preferences morally weighty), and a long literary tradition that had been celebrating romantic love for centuries while practical marriage went on without it. The romantic marriage ideal is the institution's most consequential innovation since the Christian sacramental reform.

Under English common law, inherited by the American colonies, marriage absorbed the wife's legal personhood into the husband's. She could not own property, sign contracts, sue, be sued, or keep her own wages. Hartog documents how nineteenth-century American courts negotiated this doctrine in practice — wives did own things, did make contracts, did manage households — while the formal law took a century to catch up. Married Women's Property Acts began in the 1830s and spread through the century. By the early twentieth century, formal coverture was largely gone, though residues persisted: married women's credit, taxation, immigration status, and surnames remained tangled with their husbands' well into the 1970s.

Until 1969, every American state required proof of fault — adultery, cruelty, abandonment, sometimes insanity — for divorce. California's Family Law Act of 1969, signed by Ronald Reagan, eliminated the requirement. Within fifteen years, almost every state had followed. Divorce rates roughly doubled in the decade after no-fault, then leveled off. Cherlin treats no-fault as a key marker of marriage's deinstitutionalization: when the state stops policing exit, the institution becomes a voluntary commitment held by the spouses' continuing will, not by external force. The romantic logic finally reaches its conclusion: if you marry for love, you may also leave for its absence.

The first legal same-sex marriages in modern history occurred in the Netherlands in 2001. Within twenty-five years, more than thirty countries had followed, including most of Western Europe, North America (Canada 2005, US 2015), parts of Latin America, Australia, and a few Asian nations. The change is striking in its speed and in what it reveals about marriage's institutional logic: the romantic-emotional model of marriage, fully developed, makes the sex composition of the couple structurally irrelevant. If marriage is about loving partnership between two adults, the partners' genders don't bear on the institution's core function. Cott's history treats this as the latest in a long series of redefinitions, not the first time marriage has been remade.

Cherlin's central claim about contemporary Western marriage: the institution is deinstitutionalizing. Social scripts that once specified what marriage was and how to do it have weakened. Marriage rates fall; cohabitation rises; childbearing increasingly occurs outside marriage; divorce remains common; remarriage and stepfamilies multiply the forms a household can take. Marriage is becoming a capstone — something accomplished later in life as a marker of having arrived — rather than a cornerstone laid early as the foundation of adult life. Whether this is the institution's slow death or its transformation into a different but still recognizable form is the open question. The history of marriage is, as ever, in motion.

1. Witte, John, Jr. From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition. 2nd ed. Louisville: Westminster John Knox Press, 2012. 2. Coontz, Stephanie. Marriage, a History: How Love Conquered Marriage. New York: Penguin, 2006. 3. Stone, Lawrence. The Family, Sex and Marriage in England, 1500–1800. New York: Harper & Row, 1977. 4. Duby, Georges. The Knight, the Lady, and the Priest: The Making of Modern Marriage in Medieval France. Translated by Barbara Bray. New York: Pantheon, 1983. 5. Cherlin, Andrew J. The Marriage-Go-Round: The State of Marriage and the Family in America Today. New York: Knopf, 2009. 6. Cott, Nancy F. Public Vows: A History of Marriage and the Nation. Cambridge, MA: Harvard University Press, 2000. 7. Hartog, Hendrik. Man and Wife in America: A History. Cambridge, MA: Harvard University Press, 2000. 8. Cressy, David. Birth, Marriage, and Death: Ritual, Religion, and the Life-Cycle in Tudor and Stuart England. Oxford: Oxford University Press, 1997. 9. Westermarck, Edward. The History of Human Marriage. 5th ed. London: Macmillan, 1921. 10. Norton, Mary Beth. Founding Mothers and Fathers: Gendered Power and the Forming of American Society. New York: Knopf, 1996. 11. Fisher, Helen. Anatomy of Love: A Natural History of Mating, Marriage, and Why We Stray. Rev. ed. New York: Norton, 2016. 12. Brundage, James A. Law, Sex, and Christian Society in Medieval Europe. Chicago: University of Chicago Press, 1987.