Exceptions to gender equality in marriage
February 18, 2016 4:31 PM   Subscribe

In the Western world today, what differences or disparities (if any) still exist between the genders in terms of legal rights, responsibilities, and protections broadly related to marriage?

It's my understanding that changes to legislation and case law have established legal gender equality in marriage in Western countries. I'm wondering if there are exceptions to this, i.e. cases where there are codified differences in how the law treats women and men in matters related to marriage. Given the patriarchal history of the institution, I'm particularly interested if there are cases where husbands still have rights or powers that wives do not.

"Related to marriage" could include civil unions and common-law marriage, divorce regulations, reproductive rights insofar as they are affected by marriage, property and inheritance rights likewise, etc. Marital rape laws and child custody cases come to mind as possible edge cases, since men and women are affected differently in those instances even if the gender differences aren't strictly speaking codified in law.

I'm primarily asking about the US & Canada, Western European countries, and Australia & New Zealand; other Western jurisdictions that can be considered "Western" are also of interest, but I'm not asking about women's rights in Yemen, for example.
posted by Gerald Bostock to Law & Government (15 answers total) 5 users marked this as a favorite
I expect that this is still being established, as what you're talking about tends to emerge from case law rather than through legislative, executive, or judicial fiat.

I live in California, where one occasionally hears talk that biological birth mothers may be afforded some sort of preference in child custody cases that involve the biological father having a subsequent marriage to another man. This is entirely anecdotal, and not one that we've experienced (my partner has kids from his previous marriage to a woman; we're all a big family, essentially, but the courts focused much more during the divorce/custody proceedings on maintaining a quality of life for all parties that most closely mirrored pre-divorce status quo, hence things seemed more based on income disparities than gender ones). Nevertheless, we know a lot of other families in similar positions and a couple of them seem to have an implicit gender bias (e.g. a judge who thinks a mother is a better tenant of childrens' interests than a father, or possibly a gay father). But that, too, is complicated to verify or even believe. There have been cases in other states, though, where biological parenthood (and thus, by proxy, gender) has been used as a legal bludgeon. These cases aren't reducible to gender so much as sexual orientation though.

Is this the sort of thing you're asking?
posted by late afternoon dreaming hotel at 5:27 PM on February 18, 2016

I am not sure what the law is today, but it in my lifetime in New York State it was the case that any children born of a marriage were the legal responsibility of the husband in that marriage, regardless of acknowledged paternity.

My parents were separated for 10 years and my mother was with my step-father for nine when she became pregnant with my sister; my mother and father got a very pregnant divorce to preserve my step-fathers paternal rights and terminate my father's fiduciary obligation to a child that wasn't his.
posted by DarlingBri at 5:48 PM on February 18, 2016 [1 favorite]

There are several differences in how mothers and fathers are treated with respect to their biological children - I'm not sure if that's the kind of thing you're looking for. For example, see Part C of these USCIS regulations governing the citizenship of a child born to an unmarried couple where only one parent is a US citizen. It's much easier to establish the citizenship of a child born to a US citizen mother than a US citizen father.

There are also (understandable, in my opinion) differences in how parentage is established - see for example this section of CA's family code. Note that in California, the spouse of the natural mother (aka birthmother) is treated the same regardless of the sex of the spouse, at least in most circumstances. This is not necessarily true in all states, though I don't know how the law has changed in the past few years after nationwide marriage equality rights for same sex couples.
posted by insectosaurus at 6:13 PM on February 18, 2016

Relater to the paternity discussion, I have heard that the required period of legal separation exists in some states to determine that the woman is not pregnant.
posted by peanut_mcgillicuty at 6:47 PM on February 18, 2016

That was sort of true in Japan until two months ago, peanut_mcgillicuty, but I believe it was struck down by a court in December. Until then, women, but not men, had to wait six months after a divorce to get remarried, ostensibly so there was no ambiguity over the paternity of any children.
posted by ArbitraryAndCapricious at 6:55 PM on February 18, 2016

Not sure if this is what you're looking for, but most US states STILL don't allow men to easily change their name on marriage, whereas women can do it very simply--all due to the expectation that women will change their birth surnames to their husbands'. (I don't know if the same-sex marriage ruling will change this--you'd think it'd have to, finally.)
posted by wintersweet at 6:56 PM on February 18, 2016 [11 favorites]

Engagement rings are one thing to look at, I believe they are generally covered under common law and the assumption is that the woman receives it from a man. There has been a bit of case law on who gets to keep the ring with a broken engagement.
posted by saucysault at 7:12 PM on February 18, 2016

You may want to look at how other countries view indigenous rights after marriage. Until 1985, a Canadian woman would lose her "status" and band membership if she married outside her band On the other hand, if a man married a non-band member his new wife would be considered First Nations.
posted by saucysault at 7:19 PM on February 18, 2016 [2 favorites]

"I am not sure what the law is today, but it in my lifetime in New York State it was the case that any children born of a marriage were the legal responsibility of the husband in that marriage, regardless of acknowledged paternity. "

This is still true in most common law countries. It's typically a rebuttable presumption with modern DNA testing, but in general, yes, when you married to a person with a uterus, you are legally obligated to parent and be financially responsible for anything that emerges from that uterus, absent a specific exception. The legal father married to the biological mother can, in some cases, still block the (other-man) biological father from claiming paternity.

I got married in North Carolina; it was free for women to change their last names within like six months of marriage, but men who wanted to had to pay somewhere around $300 to get it all done.
posted by Eyebrows McGee at 7:21 PM on February 18, 2016

This is a terrible Blog post but it tries to explain a sexist assumption in Canadian tax law. Basically, a conservative government gave $100/month per child under six to every eligible household. Canadian tax laws/social programme rules are weird in that sometimes they calculate by household and sometimes by individual. In this case, the cheque is sent ONLY to the female head of household, regardless of if she is the parent of the child. There have been several men with full or partial custody of their biological children, that live with a girlfriend that has no role in parenting their children - yet the girlfriend gets the monthly cheque for the children made out in her name!
posted by saucysault at 7:33 PM on February 18, 2016 [3 favorites]

Some states do not allow divorce if the woman is pregnant. When I divorced my first husband in 2007 there was a part of the paperwork asking if I was pregnant. I don't know exactly how marking yes would have changed the outcome.
posted by toomanycurls at 11:48 PM on February 18, 2016

Thanks for these answers! They're all very helpful, and definitely the kind of thing I'm asking about.
posted by Gerald Bostock at 9:23 AM on February 19, 2016

Nationality laws in 27 countries worldwide prevent mothers from passing their nationality to their children on an equal basis with fathers. Over 60 countries deny female citizens equal rights with male citizens in their ability to acquire, change and retain their nationality, and to confer nationality to non-national spouses.
Even though these countries aren't necessarily Western, I thought it might be worth mentioning The Global Campaign for Equal Nationality Rights because they state that:
Many of these laws are rooted in colonial legacies, reflecting the discrimination against women embedded in colonial powers’ legal systems, which included other forms of discrimination.
posted by aniola at 10:23 AM on February 19, 2016

US case law significantly favors women over men in a broad variety of divorce and child custody issues.

Absent overwhelming evidence of gross unfitness, is very hard for for a man to obtain primary physical custody of children over the objection of a wife from whom he he is separated or divorced, and essentially unheard of to prevail over the objection of an ex-girlfriend.

Marital property division dramtically favors women with minor children when the family home is a large portion of assets. Most divorce judges are quite comfortable with an outcome where financial assets are split down the middle, wife gets the 4,000 square foot family home in good school district, and husband has a two bedroom condo in a mediocre neighborhood.

While this is changing, alimony rules as applied still greatly favor women when they are the higher income spouse versus men when they are.
posted by MattD at 3:08 PM on February 19, 2016

Marital property division dramatically favors women the primary caretaker parent with minor children when the family home is a large portion of assets. Most divorce judges are quite comfortable with an outcome where financial assets are split down the middle, wife the primary caretaker gets the 4,000 square foot family home the children have always lived in in a good school district where the children have always gone to school, because this is what's in the best interests of the children.

So there are aspects of law where gender preference is not codified, but because of the way we have traditionally staffed our gender roles, the law favours one gender over the other. More primary caretakers of young children are mothers women than men.

There are other examples where this is codified, though. I have previously commented on the way the government manages taxation for married couples:

My husband and I both file taxes as self-employed people. As a married couple, we get a tax credit and can apply it to either income. Generally you want to apply it to the higher income, which happens to be mine.

1/ They apply it to the male partner by default
2/ I have to call to have it applied to me
3/ The following year, they default it to him again
4/ All of the notices we get from the IRS are ADDRESSED TO HIM, even when they are notices that they are taking tax payments from MY ACCOUNT on a payment plan I ARRANGED with them to pay MY TAXES.

This is not an error on my account. This is the way the system actually works.
posted by DarlingBri at 8:17 PM on February 20, 2016 [2 favorites]

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