The foundations of marriage: are they crumbling?

What is marriage? Existing treatments identify the gains to marriage but say little regarding the foundations of the institution itself. This paper proposes that marriage is designed to facilitate sexual co‐operation in a world without reliable contraception and paternity verifiability. By allocating control rights, it functions to mitigate the hazards of sexual opportunism. Recently, however, the technology shocks of the pill, legal abortion and paternity testing have weakened the links between marriage and both sex and reproduction. This has undermined the traditional justification for marriage. What remains is a bundle of legal and economic benefits that are gradually losing significance as the focus of family law shifts from marriage to parenthood as its fundamental organising principle.