Let us say that being a spouse entails a unique set of rights and duties, namely:
1. having a right to live together, and a duty to share a home, if possible;
2. having a right to at least occasional sexual intercourse, if possible, and a duty to perform sexual intercourse, if possible;
3. having a right to sexual exclusivity, and a duty to fidelity; and
4. having a right and duty to fealty, that is, to permanence in your spouse’s obligations, and a corresponding obligation to permanence in one’s spousal duties.
If (I) is correct, then only spouses would have these rights and duties because one should only gain a title to them by becoming a spouse. Simple cohabitators might have reasonable expectations of (1)–(3), but neither rights nor duties to them, simply by virtue of cohabitation; and they do not, precisely because they are merely cohabiting, have either a right to or a reasonable expectation of (4).
So, in virtue of what does a person become a spouse? It is suggested that a husband gains (1)–(4) by becoming family to his wife, and vice-versa, while a partner gains them through the making and receiving of promises.
There are several rival conceptions of marriage whose commitments can be perspicuously stated as an inconsistent triad:
(A). Familial relations are metaphysically robust and ethically deep.
(B) Spousal relations are familial relations.
(C) Spousal relations are not metaphysically robust and ethically deep.
One option is that (A) and (C) are true, and (B) is false = Marriages are simply contractual relations that retain all of the features of promissory obligations, including the power to waive duties and dissolve relationships. It also follows, that this voluntarist view of marriage may relieve their mates of the burdens of monogamy, sexual exclusivity and activity, cohabitation, and so on.
The second option is that (B) and (C) are true, and (A) is false = So conceived, marriage is a species of friendship: its rights and duties are acquired voluntarily; it involves exclusive and partial care for another person. With the friendship view of marriage, “the feelings involved in love are the basis for any desirable marriage,” and constitute the ground for its persistent value hence is permissibly to dissolved the marriage should the feelings of either party disappear.
The third option, the family view of marriage, is that (A) and (B) are true, and (C) is false. According to this account, taking someone as your spouse voluntarily makes them a family member. It entails that the concept of “divorcing” one’s spouse is as incoherent as “divorcing” one’s parents or siblings. On the one hand, this satisfies the legitimate interests and needs of spouses through corresponding duties of care in their mate and, against the friendship view, secures or enshrines these rights and duties. On the other hand, against the voluntarist view, the family view entails that X’s voluntarily incurring special obligations toward Y is a necessary but not sufficient condition for those obligations being merely promissory in nature.
SOURCE: Excerpts from Logos: A Journal of Catholic Thought and Culture, Indissoluble Marriage: A Defense by Joshua Schulz [Volume 15, Number 2, Spring 2012, pp. 118-137]