Law and love : the (in)visibility of romantic love in the legal discourse of modern Australian marriage

Abstract

This thesis is about how love, perceived as one of humanity's most powerful emotions, is reflected in law - one of society's most important social discourses. The specific context of this inquiry will be marriage. In the popular discourse of western societies, marriage is steeped in the ideology of romantic love, but to what extent is this view replicated in the legal meaning of marriage? This thesis interrogates four legal episodes which have significantly challenged traditional meanings of marriage in modern Australia, and asks to what extent, and in what form, romantic love features in the construction of those meanings. Marriage has conventionally been understood as a heterosexual relationship between one man and one woman, which has as one of its primary functions the procreation of children. Marriage has also been understood as an economic unit. As such sex, gender, sexuality, procreation, family and economics are all central ideas in marriage. This thesis takes four episodes which question whether sex is part of marriage (R v L); what the relationship between domestic and commercial arrangements are (Garcia); and whether sexual identity, gender and sexuality define marriage (Re Kevin and the same-sex marriage debate). This analysis will show that while romantic love is not altogether invisible in that legal discourse, it does not displace the traditional association of marriage with family, sexual access, procreation and economics. Furthermore when love is visible it is not the liberating, anti-traditional, progressive, radical phenomenon romantic love is often claimed to be; instead we see that love, as per the feminist and queer critiques, is mostly understood as being embedded in very traditional discourses of nature, procreation, domesticity and heterosexuality. Thinking about marriage in the context of love is not a typical legal exercise. Emotions are not usually regarded as relevant for the discipline of law; as such this thesis challenges the positivist rhetoric of law which persistently argues that law is and ought to be separate from emotion. This thesis will show that an emotional inquiry adds much both to the law's understanding of the institution of marriage and to our understanding of the law. This in turn better informs the law to fulfil its regulatory and conflict resolution functions; adds much to our understanding of how law thinks, operates and attributes meanings to social and cultural behaviour; and adds much to the effectiveness of law and its relevance to humanity. Show more