The Marriage Miranda
“You have the RIGHT TO REMAIN SILENT.” Everybody is familiar with that ubiquitous line from a criminal justice series on television and could recite at least the beginning sentences of the “Miranda” warning. This warning is a series of statements that must be given by the police to anyone being taken into police custody. They are derived from MIRANDA v. ARIZONA (1966), a United State Supreme Court decision in which the Court found that a defendant had been deprived of his Constitutional rights (specifically his Fifth Amendment “privilege against self-incrimination”) when he was not given full and effective notice of his rights. Following that decision, law-enforcement officers were required to educate citizens at the very moment that the police were arresting them. Here are the words:
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to talk to a lawyer and have him/her present with you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.
5. You can decide at any time to exercise these rights and not answer any questions or make any statements.
Do you understand each of these rights as I have explained them to you?
Having these rights in mind, do you wish to talk to us now?
Thus, in order to be interviewed any further, a defendant must first choose to waive his/her rights; otherwise, no interview may proceed.
Consequently, our federal and state governments have the responsibility of not only “playing fair,” even while enforcing laws, but further, of educating the very citizens that they are in the process of investigating, while enforcing the law. These dual roles of government entities, the roles of Enforcer and Educator, are complicated, tense, and often contradictory in operation. But there is one arena in which there appears to be a distinct lack of education at the critical moment — the application for a license to marry.
The “right to marry” has been protected under our Constitution, triggering rights and responsibilities of enforcement when dealing with the citizenry. But there is a pretty stunning gap of information communicated to couples about the affirmative rights that they already possess, before taking the steps to diminish those rights. Just as the accused are warned they have a right to remain silent, to withhold their words and refrain from giving the government any further advantage, may I suggest that couples applying for a marriage license could be similarly advised? Shouldn’t the responsibility of the government include an educational component, prior to delivering a “license,” as to what rights these individuals have, before being relinquished? I am suggesting here that, given the stakes involved, and the agonizing price paid by individuals and families when marriages fail, that state government should be asked to educate citizens at the moment of application for a marriage license.
Based on almost thirty (30) years of practicing divorce law, plus five (5) years as a Justice of the Peace, I have observed that people rarely, if ever, have even a rudimentary understanding of the laws to which they voluntarily subject themselves when they get married. And why would they? Human beings are understandably driven by feelings in the first instance. People in love are under the influence of powerful neurotransmitters, hormones and the physiology of pleasure that has been designed by evolution to ensure our reproduction and survival. Which is not to say that people in love are incapable of making good decisions. But without a point of interception at which education is made available, the more logical part of the brain, (the prefrontal cortex ) is left untended, sometimes trampled by the momentum of wedding planning, rather than encouraged to build the architecture of a marital and family relationship that will withstand pressures over time.
City halls hand out marriage licenses like candy, with no pamphlets on the wall about what marriage means, nor mandated training on what happens to your money and your children by the act of marriage. There are no marriage courses required, no secular equivalent of the Catholic Church’s Pre-Cana equivalent offered, much less mandated, by the state. (While there are plenty of premarital counseling books or courses out there, none of them are mandated when applying for a marriage license.) Similarly, filing a divorce action only requires one of the spouses’ desire to do so, nothing else.
In another example of education and enforcement: the state has a public safety interest in educating prospective drivers of the inherent risks when operating a vehicle on public roads. Doesn’t it seem ironic that the state requires thirty (30) hours of driver’s education, and a further eighteen (18) hours of instruction in a training motor vehicle, but zero (0) training or education on the consequences of getting married? Think about this: if marriage fails, the participants cannot “give up” their license, but rather, they need the approval of a judge in a court in order to get out? Nor are citizens educated on what the law requires a judge to consider before deciding what will happen to their home, children, and money? It borders on the ludicrous that people are offered no education about what they are relinquishing of their financial and emotional freedom.
Even the Department of Children and Families, when investigating an allegation that a child may have been abused or neglected, behave just like the police; the social worker, poised at the threshold with the power to make an emergency removal of the children in the home, hands a parent a pamphlet explaining their rights. Another ironic example: divorcing couples in Massachusetts are mandated to take a course on how to be better co-parents after divorce. But before they marry and have children? No such luck. State government should really become more invested in and more responsible for educating its citizens, by giving notice and education to citizens on the legal consequences of marriage.
Does this suggestion seem anti-marriage? I hope not. Make no mistake, I admire family and friends who have built lasting marriages. I have observed the deep love and commitment, and the tremendous work involved in facing and overcoming the innate challenges. But they are rare exceptions. Very few people of my age have been married over 20 years who would describe the marriage as “happy.” Many who remain married are contemplating divorce. As soon as one party files for divorce, and both spouses begin to learn what is involved, those next moments are the ones that I would like to think that my divorce-professional peers might agree are some of the most painful: the moments I speak of are the ones when our clients begin to realize that everything they hold dear may be in the hands of a judge, a stranger, a third-party human being who may or may not be having a good day (or, as one may vividly imagine, a human being who might be over-caffeinated, or under-medicated, or who may be experiencing their own significant family drama.) The word I use to describe this moment is “shell-shocked.” My clients’ eyes, when they realize that they may have no control over their home, their children, and their money, reflect trauma, harm that might be mitigated by even a fraction of a degree if the government issuing marriage licenses had provided education, and encouragement for better planning.
Perhaps the time has come to shift how our society continues to favor weddings and receptions and showers, when the benefits no longer necessarily outweigh the detriments. State-facilitated education could potentially influence couples to learn more, to reconsider the steps to be taken before getting married, and to engage in further dialogue about mutual goals, and agreement regarding what assistance (including professional assistance) they might seek if they experienced difficulties. And if marriages still fail, at least our clients might be less shell-shocked by the process of divorce, had they been forewarned. If our government could provide a basic but compelling level of education that was designed to appeal to the rational mind, to penetrate the powerful romantic and sexual bonding of a relationship, then we might see an improvement in the quality of decision-making, and, potentially, less divorce throughout our population. If that aspiration is too ambitious, then perhaps we could hope for less shell-shock, and a more balanced management of the broken contract, should the marriage fail. If only citizens could hear and read, at the time of application for a license to marry, a version of a Marriage Miranda offered to them:
• You have the right to partner with another adult without applying for a license and without directly involving your state or federal government.
• You have the have the right to enjoy a consensual sex life, without getting married.
• You have the right to live together, buy property together, enter contracts together, purchase insurance together, name each other as beneficiaries on accounts, and/or procreate and birth and parent children together (subject to the laws regarding your rights and responsibilities toward each other and such children), all without getting married;
• You have the right to celebrate your partnership with a big party, at which you receive gifts, without getting married.
• You have the right to exchange and wear rings, symbolizing your commitment to each other, without getting married.
• If you choose to voluntarily give up these rights, and apply for and use a license to marry, then anything you own, earn, birth, build or create during the course of your marriage can and will be subjected to court scrutiny and divided “equitably” (which means potentially unevenly) in a court of law, including over your objection, should your marriage fail, for any reason.
• You have the right to speak to a lawyer of your choosing, about marriage, children, divorce and custody law, and the potential financial and custody outcomes, should a marriage fail, and you have to present your life and wishes to a judge for approval;
• If you cannot afford to hire a lawyer, you can request a consultation with a volunteer attorney through your local Bar Association.
WAIVER –
Do you understand each of these rights I have explained to you?
Having these rights in mind, do you wish to proceed with applying for a marriage license?
