pal-brook-FM 10/22/07 4:17 PM Page i Conjugal Rites This page intentionally left blank pal-brook-FM 10/22/07 4:17 PM Page iii Conjugal Rites Marriage and Marriage-like Relationships before the Law Heather Brook pal-brook-FM 10/22/07 4:17 PM Page iv CONJUGALRITES Copyright © Heather Brook. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. First published in 2007 by PALGRAVE MACMILLAN™ 175 Fifth Avenue, New York, N.Y. 10010 and Houndmills, Basingstoke, Hampshire, England RG21 6XS. Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978-1-4039-7656-7 ISBN-10: 1-4039-7656-2 Library of Congress Cataloging-in-Publication Data Brook, Heather. Conjugal rites : marriage and marriage-like relationships before the law / Heather Brook. p. cm. Includes bibliographical references and index. ISBN 1-4039-7656-2 1. Domestic relations—History. 2. Marriage law-History. 3. Unmarried couples—Legal status, laws, etc.—History. 4. Cohabitation agreements— History. 5. Same-sex marriage—Law and legislation—History. I. Title. K670.B76 2007 346.01’609-dc22 2007023136 A catalogue record of the book is available from the British Library. Design by Scribe Inc. First edition: December 2007 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America. Parts of Chapters 2 and 6 were published as “Just Married? Adversarial Divorce and the Conjugal Body Politic,” Feminism & Psychology. Special Issue on Marriage (II), Volume 14 (1): 81–99, 2004; and “Stalemate: Rethinking the Politics of Marriage,” Feminist Theory3 (1): 45–56, 2002. Parts of Chapter 5 were originally published as “The Troubled Courtship of Gladys & Mick,” Australian Journal of Political Science32 (3): 419–36, 1997. pal-brook-FM 10/22/07 4:17 PM Page v CONTENTS Acknowledgments vii 1 Introduction: Proposals and Propositions 1 2 Theorizing Conjugality 13 3 Making Marriage: Validity and Nullity 41 4 Union: Adultery and Other Sexual Performatives 69 5 Marriage “Beyond the Pale”: “Mixed” Marriage, “Miscegenation,” and Assimilation 95 6 S/he Done Me Wrong: Adversarial Versus “No-fault” Divorce 121 7 The “Limping” Marriage: Regulating Cohabitation 153 8 Queer Propositions: Sex and Sexualities 177 9 Conclusion: Sex, Marriage, and Conjugality 199 List of Cases 207 References 209 Notes 235 Index 249 This page intentionally left blank pal-brook-FM 10/22/07 4:17 PM Page vii ACKNOWLEDGMENTS Since I have been thinking about the issues and ideas explored in this book for many years now, and since thinking is never as solitary as we might like to imagine, there are a number of people whose part in the process I wish to acknowledge. Without patient support from Ella Georgiades, Joanna Mericle at Palgrave, and others, this project would have been more difficult and less satisfying. I am thankful, too, for the friendly guidance offered by Rosemi Mederos at Scribe. Closer to home, I thank my colleagues and friends in Women’s Studies and the Faculty of Social Sciences at Flinders University for providing research assistance and a collegial working environment. Thanks especially to Barbara Triffett, whose help over many years has been invaluable. I am also indebted to the faculty, graduate stu- dents, and visiting researchers of the Political Science Program at the Australian National University’s Research School of Social Sciences between 1996 and 1999, and to Barry Hindess in particular. For their crucial partnership in the complex dance of learning, teaching, and friendship, I extend hearty thanks to Kylie Wilson, Emma Wilkinson, Deb Whitelock, Veronika von Bujdoss, Barbara Sullivan, Hayley Smart-Welgus, Siti Aisyah, Irabinna Rigney, Tracy Riddiford, Sandie Price, Dee Michell, Deb King, Carol Johnson, Tania Innocenti, Belinda Hounslow, Mary Holmes, Barry Hindess, Mary Heath, Ali Elder, Shannon Dowling, Lisa Crago, and Chris Beasley. For institutional support of a different kind, my gratitude goes to the strong, loving, inspired, and inspiring women in my family: Barbara Brook, Wendy Miller, Brooke Miller, and Tricia McLuckie. For being there for all of us, I thank Des Hollamby. The sisters I choose—Kate Sugars, Meredith Walsh, and Rebecca Stringer—are a pal-brook-FM 10/22/07 4:17 PM Page viii viii Acknowledgements source of enormous pride and joy for me, and I thank each of you for your good ears, love, wisdom, and wit. For their different orders of knowledge and lessons in courage, I thank Lindsay Brook and Martin Brook, both of whom I revive in memory every day. To the constellation of families sustaining me throughout—the Millers, McLuckies, Sugars, and Butlins—my warmest thanks. For being gentle on my mind, for having broad shoulders and a strong stomach, and for seeing the best in me even at my worst, thanks beyond measure to Rod Butlin. pal-brook-01 10/22/07 4:18 PM Page 1 4 C h a p t e r 1 Introduction: Proposals and Propositions A s a little girl, I received for my sixth or seventh birthday a bride doll. It was a beautiful thing—about a foot high, with blue eyes (which opened and shut), decked from head to toe in voluminous white nylon. Staging the “Wedding of the Year” at the foot of my bed, my bride doll swept down the aisle to meet Ted at the altar, while imaginary guests wept at the gorgeousness of it all. But after the ceremony, as I prepared the bride for what I precociously knew to be “her special night,” my pleasure turned to frustration: there were no zips or clasps for removing the doll’s outfit. She had been sewn into her wedding gown. This seemed to me to be a horror of the magnitude of magical dancing shoes stuck permanently to one’s feet. The doll had but one role—one line—and her principal moti- vation was to avoid getting dirty. There could never be anything beyond the wedding for her—no honeymoon, no affairs, no divorce—just “Here Comes the Bride” rendered over and over on my trusty school recorder. All I could do with her was flip her veil in relentless iterations of the moment of her wedding. With the repertoire of play limited by her costume, my new bride doll soon became boring. Once she’d married all the other toys, I subjected her to hairdressing with nail scissors and the application of felt-tipped make-up. Before long my beautiful bride doll was dirty and disheveled, and I stopped playing with her. She sat abandoned