Marriage is an assertion.  A man and a woman, call them Bob and Alice, assert they are married and so they are.  Bob asserts to others that he is married to Alice and this assertion is accepted as valid.  Their claim is accepted at face value by their community and supported by their society’s institutions.  

This pertains in both formal and informal situations.  Alice informally asserts that she is married through explicit symbols and claims, such as her wedding ring, and by claiming the state of marriage in formal documents such as tax returns, health insurance, birth certificates, wills and trusts, and health care directives.  

There is normally no check on this assertion.  In twelve years of marriage I have never once been asked to prove that I am married.  I have a copy of our marriage certificate, the legal document, but I have never once had the occasion to present it in support of the assertion of my married state.  I’ve asked others about this, including my parents who’ve been married for 49 years, and I have yet to hear of a situation where someone was required to prove through documentation that they were indeed married.  I’m sure those situations exist, but they’re boundary conditions: immigration officials doubting that Alice and Bob are really a couple and not just married for purposes of obtaining citizenship, for example, or a messy divorce where Alice claims that she was never married to Bob in the first place and thus doesn’t owe him the alimony he claims.   

As an everyday matter, in both formal and informal situations, marriage is an assertion between two people.

“Common law marriage” recognizes the situation of couple that assets their marriage, without any external agency (the state or the church).  Common law, the law of precedents, is always superceded by statutory law so that as we put laws on the books they take priority over the body of judicial precedents.  It is important to note, though, that in the past there was clear legal precedent for the validity of marriage solely by the agency of the two parties involved.  Common law marriage in the US is only recognized in eleven states today, and even in those states to varying degrees; some recognize its validity only for probate or grandfathered in prior to the 1990s, for instance.  In all cases, though, it’s worth noting that common law marriage *requires* assertion; simply living together, or owning property and having children together, is never adequate.

I believe that the situation in canon law, the religous law of the Catholic Church, at least in the past, was similar to our common law tradition; Alice and Bob did not need a priest for their marriage to be valid.  The priest is there as a representative or a witness not as the agent granting the marriage.  

So the fact that the state or the church today intervenes and ‘grants’ marriages — “by the authority invested in me by the state of Illinios, I now pronounce you husband and wife” —  represents diachronic change in the institution of marriage which was in the past, and is still in practical terms today, an assertion between the couple.

We can legislate the institution of marriage all we want but we need to very clearly acknowledge that this legislation, specifically the claim of the state to agency, is innovation and not tradition.

In truth, the issue of agency in marriage is even more complicated, because the institution actually has two stages, engagement and marriage. 

For the usual situation with marriage in the US today, the agency lies with Bob and Alice for the first stage, the engagement.  Bob normally asks Alice to get engaged.  By recent tradition, it should be a surprise; the idea shouldn’t be surprising but the event should be.  At the engagement, Bob is expected to provide a diamond ring as proof of his seriousness.  (The history of this idea is a separate exercise, a study in commerce, starring the de Beers family.)  In other situations, the engagement agency rests with outside actors: Bob’s family and Alice’s family decide on the marriage for them, sometimes even before they’re born. 

In the US today, Bob and Alice usually are in a relationship before they get engaged, and the expectation is that both Alice and Bob will have several relationships before getting engaged.  But not that long ago, within the last fifty years in the US, the reverse was true; Bob might ask Alice to marry him even if they were not in a relationship.  He might ask many women to marry him.  In that variation, Alice’s answer might be yes or no but was always unknown.  This is very rare now.  When Bob proposes to Alice he only does so with a high expectation of a positive answer.  

The history of the ideas of courtship, romanace, love at first glance, eternal love, and all the rest is fascinating and has roots in Muslim devotional poetry and medieval Provence.  Suffice to say that there is a history of love; none of it is immutable or timeless.

In the US today, we don’t have brideprice (Bob’s family pays Alice’s family) but we do have a sort of dowry (Alice’s family pays Bob’s family), where we expect that the bride’s family will pay for a lavish party, costing as much as a down payment on a house, from back when people made down payments on houses.

The marriage itself has two sections: the legal marriage and the public performance.  The legal marriage is performed by an appointed official of the state, e.g., a justice of the peace or the bus driver that married Karen and me.  The public performance is typically a religious ceremony performed in a church.  Usually, the legal and the public/religious/ceremonial are combined so that the distinction in practice is often blurred.  For example, the Catholic priest that performs Bob and Alice’s public wedding ceremony is also an appointed official of the state of Illinois, certified by both his church and his state to perform marriages.  

There’s also the special situation of elopement, which is generally recognized as valid but abnormal.  When Bob and Alice elope they combine engagement and marriage for reasons of expediency or evasion.