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Law and the Power of Feminism: How Marriage Lost its Power to Oppress Women

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Abstract

In Feminism and the Power of Law Carol Smart argued that feminists should use non-legal strategies rather than looking to law to bring about women’s liberation. This article seeks to demonstrate that, as far as marriage is concerned, she was right. Statistics and contemporary commentary show how marriage, once the ultimate and only acceptable status for women, has declined in social significance to such an extent that today it is a mere lifestyle choice. This is due to many factors, including the ‘sexual revolution’ of the 1960s, improved education and job opportunities for women, and divorce law reform, but the catalyst for change was the feminist critique that called for the abandonment (rather than the reform) of the institution and made the unmarried state possible for women. I conclude that this loss of significance has been more beneficial to British women in terms of the possibility of ‘liberation’ than appeals for legal change and recognition, and that we should continue to be wary of looking to law to solve women’s problems.

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Notes

  1. Niamh Baker reminds us, however, that serious women’s novels of the time did set out the dangers and “isolation that awaits a woman who has invested all in her marriage” (Baker 1989, 50).

  2. As one of this generation, I can vouch for the accuracy of this claim.

  3. Reminiscences are full of accounts of women who pretended to be married to get contraception—“Woolworth’s did a good trade in cheap rings” (Murray 1996, 248). Indeed, the Woolworths ring did duty in many situations—in the maternity ward, for instance (Rayner 2003, 246), or negotiating to rent a flat with one’s boyfriend (personal experience).

  4. Women’s domestic role was not regarded as a serious subject for research at the time and she had great difficulty finding a supervisor, as did Ann Oakley coming after her. See Oakley’s introduction to the second edition of Gavron 1983, vii-ix.

  5. Now Baroness Hale of Richmond.

  6. All public sector pensions (to my knowledge) provide trustees with a power to pay a ‘widow’s’ pension to a previously nominated dependant/partner. The power is discretionary (rather than automatic as for spouses) but I am unaware of any situation in which the trustees have refused to exercise it. An informant with several private pensions told me she had been able to secure the same arrangement with those schemes.

  7. Sociologist Ann Oakley and novelist Marilyn French both testified that several of their readers told them they had left their marriages after reading their books (BBC 2009).

  8. Next-of-kin is not defined by law. Contrary to what many people believe, it does not mean your spouse or nearest blood relative. Hospitals will ask you to nominate a next-of-kin and, in default of such nomination, ‘will try to work out who is the person closest to you’. Training ensures that same-sex couples and heterosexual cohabitants are now recognised where once preference might have been given to more usual family forms (Webber 2010).

  9. Children and Adoption Act 2002.

  10. Supra n 6.

  11. There are still a few areas in which marital status makes a difference, particularly where children are concerned; but these can generally be got round, if desired, by other legal devices.

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  1. School of Law, University of Reading, Foxhill House, Whiteknights Road, Reading, RG6 7BA, UK

    Rosemary Auchmuty

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Correspondence to Rosemary Auchmuty.

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Auchmuty, R. Law and the Power of Feminism: How Marriage Lost its Power to Oppress Women. Fem Leg Stud 20, 71–87 (2012). https://doi.org/10.1007/s10691-012-9197-6

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