Wolff begins his discussion of marriage by noting that humans are just like other animals in that they are driven by their nature to procreate. Procreation is thus something in accordance with natural law, he states. The act of procreation is pleasurable, since God has wanted to make such natural things feel good, yet, Wolff insists, we humans should engage in it only for the real end, that is, for the generation of offspring and not for the pleasure involved. Thus, he concludes, all acts directed toward sexual pleasure, without even the possibility of procreation, are against the natural law. In this way, Wolff bundles up bestiality with homosexuality, masturbation, sex acts without vaginal intercourse and pornography, seeing all of them as equal crimes against nature.
It is not enough to just conceive a child, but they need the help of others to stay alive and to grow up to a state where they can finally start to care for themselves. Wolff suggests that all animals have a natural tendency to love and care for their young. With animals, he states, this natural drive lasts until the offspring are mature enough to live by themselves, but with humans, it lasts for their whole lifetime. Again, due to the naturalness of this drive, Wolff thinks, parents are obligated to raise the children they have conceived.
Because the persons who conceived the child should also raise them, Wolff argues, the question of parentage should not be in doubt. Thus, he concludes, procreation should not be done willy-nilly, but there should be a definite society – matrimonial contract – in which the members commit themselves to the task of reproduction and raising of their offspring. Because the end of this society or the goal of marriage includes the task of procreation, Wolff insists, it should not be initiated by people incapable of this, whether this incapacity is due to age, infertility, castration, impotency, asexuality or even tightness of vagina. He also considers the case of people with both masculine and feminine traits and comes to the conclusion that if they can reproduce, they are allowed to marry, but not if they are completely infertile.
As to the number of participants in a conjugal society, Wolff quickly rules out the plurality of husbands, because it would make determining the fatherhood of a child impossible (it would be interesting to hear what Wolff would think about DNA testing). He considers the even more outlandish case where a wife is lent to another man for the sake of providing him a baby and finds this equally against the natural law.
Plurality of wives is a more tough case to crack for Wolff, because this does not involve a similar problem of recognising parenthood. He emphasises that monogamy is sufficient for propagating human species and that a large number of children born to a polygamous family is more difficult to raise up. Furthermore, Wolff suspects that the true reason for polygamy is usually not reproduction, but sexual pleasure, especially as humans in their present condition are not masters of their desires. What finally pushes the balance against polygamy, Wolff thinks, is that allowing it would inevitably lead to men having no wives, which would be against their right to procreate.
Marriage, in Wolff’s eyes, should be a society for just one man and one woman, who allow to each other, and only to each other, the use of their bodies for the sake of procreation and who promise to raise any children they conceive. Marriage contract gives then the spouses an exclusive right for intercourses with one another. Copulation is to be initiated only for the sake of procreation, Wolff underlines, and any sexual act that cannot lead to pregnancy is denied, even in marriage – somewhat gruesomely, he explicitly mentions sex with a dead wife as forbidden. Wolff insists in a very chilling manner that it is a duty to concede to intercourse with a spouse and a sin to refuse to do so.
If a married person has intercourse with anyone else but their spouse, this adulterous action injures the exclusive right of the spouse, Wolff emphasises, which makes the feeling of jealousy legitimate. He adds that it is especially damaging, if both persons having intercourse are married to others, since then there are two injured parties. Wolff admits that intentionality is a key element, so that a person having intercourse with someone they think is unmarried does not commit adultery, while a married person having intercourse with their spouse without recognising them does commit adultery.
Wolff moves on to discuss the concept of stuprum, which means intercourse with an unmarried woman who does not promiscuously have sex with different men (a virgin or a widow, as he clarifies). He differentiates between cases where the unmarried woman has voluntarily consented to the intercourse and cases where the man has violently forced the woman to have intercourse with him (essentially the latter case means rape). Both cases, Wolff adds, are blameworthy, but in the latter, the blame cannot be extended to the woman.
Quite coldly, Wolff insists that promiscuous women cannot be victim of violent stuprum or rape, since they already have indiscriminate sex with men. He does at least admit that these women cannot be blamed, if a man forces them to have sexual acts that are not geared toward reproduction.
Wolff also considers further consequences of stuprum. If a baby is born, Wolff thinks that both the man and the woman are obligated to raise the offspring. Furthermore, he adds, if the man has duped the virgin or the widow to sex with a promise of marriage, the man is obligated to marry the woman. If such a promise has not been made or the intercourse leads to no pregnancy, the man is not obligated to marry the woman.
Although Wolff at first restricted stuprum to intercourse with unmarried women, he later thinks that even forced intercourse with a married woman is to be classified as non-consensual stuprum or rape. His main point is that rape can never be the blame of the victim. Indeed, Wolff thinks that a woman has an unlimited right to defend her purity against such a violation, going even so far as killing the perpetrator, if the danger cannot be avoided otherwise. Furthermore, he adds, husband, son, father, or in fact, anyone else has an obligation to defend a woman being assaulted. If the rape has already occurred, Wolff states, the rapist can be punished violently, either by the woman herself or anyone she appoints to the task.
According to Wolff, marriage requires nothing else but a mutual declaration of the man and the wife that they will procreate and raise children together. This promise is then consummated by intercourse, Wolff adds and suggests that intercourse by itself is even sufficient for establishing marriage. Still, marriage can be preceded by engagement or betrothal, where a man and a woman agree that they will marry themselves, for instance, when a certain date has been reached. A betrothal already obligates the bride and the groom to marry themselves, but it in turn may be preceded by formal discussions about engagement, which as yet obligate them to nothing.
Wolff also ponders the problem of a person being betrothed to several persons. His main solution is that the betrothal contracted earlier is the valid one. Of course, Wolff adds, if a person hears that their betrothed has betrothed someone else, they are free to withdraw from the engagement, even if they had been the first one. Furthermore, if the later betrothed couple engages in intercourse – and in Wolff’s eyes, consummates their marriage – their marriage is valid, but they are obligated to make sufficient compensation to the injured party.
Betrothal must be made only with sufficient understanding of the persons involved, Wolff insists. Thus, if a man has engaged a woman, believing that she is still a virgin, he has a right to withdraw from the engagement, Wolff concludes. Similarly, if a man is revealed to be impotent, engagement is dissolved. Other reasons for the dissolution of engagement, Wolff lists, are mutual consent of the betrothed, insanity or incurable disease, and indeed, any event that would have caused either party not to consent in the first place.
Wolff points out that the betrothal may involve giving some property as a security for the future marriage. If nothing else is agreed or if there are no customs ruling the matter otherwise, the security is to be returned for the spouse who was the original owner, when the marriage has been consummated. Instead of or in addition to the security, one betrothed may also give gifts to the other. Wolff suggests that such gifts are given on tacit condition that if the marriage is not consummated, they should be returned to their original owner.
In addition, Wolff continues, betrothal may also involve a penalty, where the dissolution of the engagement before marriage obligates the party at fault to return any security and gifts they have reached, while the innocent party will have the right to keep security and gifts given to them. Existence of such a penalty means that a betrothed may break the engagement without any other retribution. On the other hand, if the betrothal is dissolved by mutual consent, security and gifts must be returned by both parties, unless they have agreed otherwise.
Like any other contracts, betrothals may also involve further conditions that must be affected before the betrothal is valid. Wolff notes that even such a conditional betrothal prevents the betrothed to engage in a new, unconditional betrothal. On the other hand, he admits, they can enter a conditional betrothal, where the condition is explicitly that the original conditional betrothal will not become valid. Even if such conditions exist and there is only one conditional engagement pending, Wolff thinks, the betrothed can simply consummate their marriage by having intercourse.
What kind of conditions are then allowed? Wolff notes that no shameful or impossible conditions are allowed and make the whole betrothal null. Then again, he does accept the condition that one of the future spouses will give the other a sum of money on the day of marriage – this is legally a gift, he argues, and gifts are something allowed by natural law. Of course, the receiver of the gift is not obligated to marry the giver, before the money has been actually delivered.
Wolff takes time to consider even a case where one party promises to marry the other, and the other one accepts the promise on the condition that the promising person does not find any more suitable person for a spouse. He notes that such a condition must be attached to a date, before which it must be fulfilled, because otherwise the marriage could be waited indefinitely and the promise would be effectively null. If there is such a date, Wolff argues, then the promising person is free to marry anyone before that date, and the suggestor of the condition will have to marry the promising person, if they have still persevered in their will to marry them.
Marriage is also an economic contract, since procreation and raising of the kids involves various costs. Wolff thinks that the spouses should live in the same place and share the administration of all the goods required for domestic life, since that is required for intercourse and upbringing of the children. He clarifies that what the spouses acquire is not naturally common between them, but each must contribute to the costs of family life as much as they can.
Wolff thinks that especially the wife has special obligations toward the household and the raising of the children. He explicitly mentions only breast feeding here, although in his earlier, German writings he had suggested that it was more convenient for the wife to take more responsibility of the children and the household, because of her naturally closer engagement with the unborn and just born children.
If the wife can manage it after the household duties, Wolff adds, they are obligated, like other people, to work for their living, either in the service of their husband (Wolff mentions being a shop assistant) or in their own (Wolff mentions such professions as a launderer, a hairdresser and a midwife). If the wife works for her husband, she is entitled to a ratio of the profit of the husband’s business, while if she works for herself, the profits she gains are her own and she just has to provide from it her share of the common expenses of the household. Wolff does mention the possibility that the spouses make a contract, where the wife transfers all her property and her future profits to the ownership or at least management of her husband, but does not really recommend it. Then again, he adds, the contract may be done the other way round, so that the wife manages the property of the husband, if she is just capable of doing this.
Both spouses, Wolff reminds the reader, are obligated to contribute to the costs of raising their children and to the acquiring of domestic goods, according to their means. Thus, if one of them is poor and cannot earn anything by working, the other alone is obligated to cover the costs, but if even the poorer spouse has some property, they must contribute from this small amount to the expenses. Wolff suggests as the most convenient means pooling all they acquire through work and all they own into a single mass of capital. The profits left after the expenses have been covered are then to be divided according to the proportion of their contributions.
If nothing else is agreed upon, each spouse has their own property, Wolff explains, so that neither can sell, give away or pawn any property of the other spouse. If some damage happens to the property of one spouse and both have their own assets, the loss is not shared, except in the case that the damage was caused by the other spouse who has to then make the necessary restitutions. The husband and the wife could agree about sharing their property, and then the consent of both is required for any transactions made of it and any damage of the property would concern both of them.
Because the husband and the wife are expected to provide for the well-being of their whole family, Wolff argues, they are obligated to care for the other spouse. Since humans have a general duty to care for any human being, Wolff states, the particular duty of caring for one’s spouse adds up to the general duty, so that spouses should care for each other more than for anyone else. He also suggests that this active caring for the other makes the spouses constantly think of the good of the other and feel pleasure for their happiness, which is a sign of love. Indeed, Wolff insists, husband and wife should love each other more than anyone else and anyone entering marriage has at least tacitly promised this. The mutual love of the married persons, he concludes, makes them into one person.
An important effect of the reciprocal love of the spouses, Wolff thinks, is that they want to share everything with one another, not just financially, but down to all the little details of their lives, facing both favorable and unfavorable events as a pair. Wolff notes that a man and a woman could commit themselves to such holistic sharing of lives, but if such a commitment didn’t involve procreation, this union would not be marriage. On the contrary, he adds, if the man and the wife do procreate and raise children, but otherwise do not share anything in their lives, this is a marriage, but far from a perfect one.
By nature, marriage is, according to Wolff, an equal society, where everything should happen with the consent of both the wife and the husband and each spouse has a right to declare their opinion on matters concerning such affairs as the upbringing of the children and the management of the household. Because marriage is a society with just two members, it is obvious that in a conflict of opinions the votes will always go even. Thus, Wolff advises, the spouses should agree with themselves beforehand who is to have the decisive vote in what matters.
More generally, Wolff says, the wife and the husband should determine by mutual consent what rules are to be obeyed in their family life. They may agree, he admits, that the wife transfers some or all their authority to the husband, and such transfer obliges the wife then to obey her husband. Indeed, Wolff notes, in some places such a transfer might be customary, and then a woman marrying a man is implicitly understood to have agreed to giving up of her authority. He points out that the law of nature does not command the wife to do so, but gives equal authority to both parties. Even if such an agreement has been made, Wolff advises the husband to temper his power over the wife with love, especially when the husband punishes his wife for disobedience.
The only obstacle for dissolving marriage that Wolff mentions is children who still need to be raised to adulthood. If the couple does not have such children and the laws of the land say nothing about the matter, marriage can be dissolved at will by either party. Wolff lists some reasons that should be a valid ground for divorce in any law, such as adultery, refusal to have intercourse, malicious desertion and irreconcilable hostility. Death of one spouse also naturally dissolves the marriage.
Once a marriage is dissolved, the former spouses can enter into new marriage contracts, which makes what Wolff calls successive polygamy licit. Indeed, he thinks it is even an obligation to marry, if you just have the necessary means for the economic requirements of a married life. Even if a person has promised to their dying spouse that they will not remarry, this promise is not valid, unless the reason for it is that the widow still has to raise their children. Wolff thinks that a man may take a new wife immediately after the dissolution of the previous one, but advises the women to wait until it is certain that they are not pregnant from the previous marriage.
In the special case of widowhood, Wolff states, the responsibility for the upbringing of the children remains on the surviving spouse. If the children have some property of their own, for instance, as an inheritance, Wolff allows using proceeds from that capital to cover the costs of raising them.
Wolff also considers the question, whether a spouse (in his examples, usually the husband) ever has an obligation to fund raising children of the other spouse (in the examples, usually the wife), conceived with another person. In case of children born from adultery, Wolff is clear that the responsibility lies with the adulterer. In case of remarriage, the remarrying person should reserve from their own property as much as is sufficient to cover their half of the expenses of raising children from the previous marriage. If the remarrying person is a widow and neither they nor their children have sufficient funds for this, Wolff advises the person marrying the widow to take care of the costs.
What about children born out of wedlock, and more generally, the question when a child is to be presumed an offspring of someone else? Wolff notes that the motherhood of the child is always certain, at least if the mother gives birth in the presence of others. As for fatherhood, he thinks that children born in marriage should be acknowledged by the father, unless there is proof of adultery. If no official marriage is in place and if the woman is known to have had intercourse with a man at a presumed time of conception, the man is obligated to acknowledge the child, unless she has had sexual relations with other men (in fact, Wolff thinks that no man needs to acknowledge the legitimacy of children of prostitutes or promiscuous women). If the man denies having had intercourse, the only test for deciding whether they lie is to ask them to take an oath on the matter (of course, methods have developed from the time of Wolff).
In any case, Wolff states, illegitimate children cannot be blamed for the deeds of their parents. Thus, their rights are to be just as same as those of legitimate children and their parents have the exact same obligations toward them. Furthermore, Wolff insists, illegitimacy is no stain on anyone’s reputation and no reason for dishonour.
Because the persons who conceived the child should also raise them, Wolff argues, the question of parentage should not be in doubt. Thus, he concludes, procreation should not be done willy-nilly, but there should be a definite society – matrimonial contract – in which the members commit themselves to the task of reproduction and raising of their offspring. Because the end of this society or the goal of marriage includes the task of procreation, Wolff insists, it should not be initiated by people incapable of this, whether this incapacity is due to age, infertility, castration, impotency, asexuality or even tightness of vagina. He also considers the case of people with both masculine and feminine traits and comes to the conclusion that if they can reproduce, they are allowed to marry, but not if they are completely infertile.
As to the number of participants in a conjugal society, Wolff quickly rules out the plurality of husbands, because it would make determining the fatherhood of a child impossible (it would be interesting to hear what Wolff would think about DNA testing). He considers the even more outlandish case where a wife is lent to another man for the sake of providing him a baby and finds this equally against the natural law.
Plurality of wives is a more tough case to crack for Wolff, because this does not involve a similar problem of recognising parenthood. He emphasises that monogamy is sufficient for propagating human species and that a large number of children born to a polygamous family is more difficult to raise up. Furthermore, Wolff suspects that the true reason for polygamy is usually not reproduction, but sexual pleasure, especially as humans in their present condition are not masters of their desires. What finally pushes the balance against polygamy, Wolff thinks, is that allowing it would inevitably lead to men having no wives, which would be against their right to procreate.
Marriage, in Wolff’s eyes, should be a society for just one man and one woman, who allow to each other, and only to each other, the use of their bodies for the sake of procreation and who promise to raise any children they conceive. Marriage contract gives then the spouses an exclusive right for intercourses with one another. Copulation is to be initiated only for the sake of procreation, Wolff underlines, and any sexual act that cannot lead to pregnancy is denied, even in marriage – somewhat gruesomely, he explicitly mentions sex with a dead wife as forbidden. Wolff insists in a very chilling manner that it is a duty to concede to intercourse with a spouse and a sin to refuse to do so.
If a married person has intercourse with anyone else but their spouse, this adulterous action injures the exclusive right of the spouse, Wolff emphasises, which makes the feeling of jealousy legitimate. He adds that it is especially damaging, if both persons having intercourse are married to others, since then there are two injured parties. Wolff admits that intentionality is a key element, so that a person having intercourse with someone they think is unmarried does not commit adultery, while a married person having intercourse with their spouse without recognising them does commit adultery.
Wolff moves on to discuss the concept of stuprum, which means intercourse with an unmarried woman who does not promiscuously have sex with different men (a virgin or a widow, as he clarifies). He differentiates between cases where the unmarried woman has voluntarily consented to the intercourse and cases where the man has violently forced the woman to have intercourse with him (essentially the latter case means rape). Both cases, Wolff adds, are blameworthy, but in the latter, the blame cannot be extended to the woman.
Quite coldly, Wolff insists that promiscuous women cannot be victim of violent stuprum or rape, since they already have indiscriminate sex with men. He does at least admit that these women cannot be blamed, if a man forces them to have sexual acts that are not geared toward reproduction.
Wolff also considers further consequences of stuprum. If a baby is born, Wolff thinks that both the man and the woman are obligated to raise the offspring. Furthermore, he adds, if the man has duped the virgin or the widow to sex with a promise of marriage, the man is obligated to marry the woman. If such a promise has not been made or the intercourse leads to no pregnancy, the man is not obligated to marry the woman.
Although Wolff at first restricted stuprum to intercourse with unmarried women, he later thinks that even forced intercourse with a married woman is to be classified as non-consensual stuprum or rape. His main point is that rape can never be the blame of the victim. Indeed, Wolff thinks that a woman has an unlimited right to defend her purity against such a violation, going even so far as killing the perpetrator, if the danger cannot be avoided otherwise. Furthermore, he adds, husband, son, father, or in fact, anyone else has an obligation to defend a woman being assaulted. If the rape has already occurred, Wolff states, the rapist can be punished violently, either by the woman herself or anyone she appoints to the task.
According to Wolff, marriage requires nothing else but a mutual declaration of the man and the wife that they will procreate and raise children together. This promise is then consummated by intercourse, Wolff adds and suggests that intercourse by itself is even sufficient for establishing marriage. Still, marriage can be preceded by engagement or betrothal, where a man and a woman agree that they will marry themselves, for instance, when a certain date has been reached. A betrothal already obligates the bride and the groom to marry themselves, but it in turn may be preceded by formal discussions about engagement, which as yet obligate them to nothing.
Wolff also ponders the problem of a person being betrothed to several persons. His main solution is that the betrothal contracted earlier is the valid one. Of course, Wolff adds, if a person hears that their betrothed has betrothed someone else, they are free to withdraw from the engagement, even if they had been the first one. Furthermore, if the later betrothed couple engages in intercourse – and in Wolff’s eyes, consummates their marriage – their marriage is valid, but they are obligated to make sufficient compensation to the injured party.
Betrothal must be made only with sufficient understanding of the persons involved, Wolff insists. Thus, if a man has engaged a woman, believing that she is still a virgin, he has a right to withdraw from the engagement, Wolff concludes. Similarly, if a man is revealed to be impotent, engagement is dissolved. Other reasons for the dissolution of engagement, Wolff lists, are mutual consent of the betrothed, insanity or incurable disease, and indeed, any event that would have caused either party not to consent in the first place.
Wolff points out that the betrothal may involve giving some property as a security for the future marriage. If nothing else is agreed or if there are no customs ruling the matter otherwise, the security is to be returned for the spouse who was the original owner, when the marriage has been consummated. Instead of or in addition to the security, one betrothed may also give gifts to the other. Wolff suggests that such gifts are given on tacit condition that if the marriage is not consummated, they should be returned to their original owner.
In addition, Wolff continues, betrothal may also involve a penalty, where the dissolution of the engagement before marriage obligates the party at fault to return any security and gifts they have reached, while the innocent party will have the right to keep security and gifts given to them. Existence of such a penalty means that a betrothed may break the engagement without any other retribution. On the other hand, if the betrothal is dissolved by mutual consent, security and gifts must be returned by both parties, unless they have agreed otherwise.
Like any other contracts, betrothals may also involve further conditions that must be affected before the betrothal is valid. Wolff notes that even such a conditional betrothal prevents the betrothed to engage in a new, unconditional betrothal. On the other hand, he admits, they can enter a conditional betrothal, where the condition is explicitly that the original conditional betrothal will not become valid. Even if such conditions exist and there is only one conditional engagement pending, Wolff thinks, the betrothed can simply consummate their marriage by having intercourse.
What kind of conditions are then allowed? Wolff notes that no shameful or impossible conditions are allowed and make the whole betrothal null. Then again, he does accept the condition that one of the future spouses will give the other a sum of money on the day of marriage – this is legally a gift, he argues, and gifts are something allowed by natural law. Of course, the receiver of the gift is not obligated to marry the giver, before the money has been actually delivered.
Wolff takes time to consider even a case where one party promises to marry the other, and the other one accepts the promise on the condition that the promising person does not find any more suitable person for a spouse. He notes that such a condition must be attached to a date, before which it must be fulfilled, because otherwise the marriage could be waited indefinitely and the promise would be effectively null. If there is such a date, Wolff argues, then the promising person is free to marry anyone before that date, and the suggestor of the condition will have to marry the promising person, if they have still persevered in their will to marry them.
Marriage is also an economic contract, since procreation and raising of the kids involves various costs. Wolff thinks that the spouses should live in the same place and share the administration of all the goods required for domestic life, since that is required for intercourse and upbringing of the children. He clarifies that what the spouses acquire is not naturally common between them, but each must contribute to the costs of family life as much as they can.
Wolff thinks that especially the wife has special obligations toward the household and the raising of the children. He explicitly mentions only breast feeding here, although in his earlier, German writings he had suggested that it was more convenient for the wife to take more responsibility of the children and the household, because of her naturally closer engagement with the unborn and just born children.
If the wife can manage it after the household duties, Wolff adds, they are obligated, like other people, to work for their living, either in the service of their husband (Wolff mentions being a shop assistant) or in their own (Wolff mentions such professions as a launderer, a hairdresser and a midwife). If the wife works for her husband, she is entitled to a ratio of the profit of the husband’s business, while if she works for herself, the profits she gains are her own and she just has to provide from it her share of the common expenses of the household. Wolff does mention the possibility that the spouses make a contract, where the wife transfers all her property and her future profits to the ownership or at least management of her husband, but does not really recommend it. Then again, he adds, the contract may be done the other way round, so that the wife manages the property of the husband, if she is just capable of doing this.
Both spouses, Wolff reminds the reader, are obligated to contribute to the costs of raising their children and to the acquiring of domestic goods, according to their means. Thus, if one of them is poor and cannot earn anything by working, the other alone is obligated to cover the costs, but if even the poorer spouse has some property, they must contribute from this small amount to the expenses. Wolff suggests as the most convenient means pooling all they acquire through work and all they own into a single mass of capital. The profits left after the expenses have been covered are then to be divided according to the proportion of their contributions.
If nothing else is agreed upon, each spouse has their own property, Wolff explains, so that neither can sell, give away or pawn any property of the other spouse. If some damage happens to the property of one spouse and both have their own assets, the loss is not shared, except in the case that the damage was caused by the other spouse who has to then make the necessary restitutions. The husband and the wife could agree about sharing their property, and then the consent of both is required for any transactions made of it and any damage of the property would concern both of them.
Because the husband and the wife are expected to provide for the well-being of their whole family, Wolff argues, they are obligated to care for the other spouse. Since humans have a general duty to care for any human being, Wolff states, the particular duty of caring for one’s spouse adds up to the general duty, so that spouses should care for each other more than for anyone else. He also suggests that this active caring for the other makes the spouses constantly think of the good of the other and feel pleasure for their happiness, which is a sign of love. Indeed, Wolff insists, husband and wife should love each other more than anyone else and anyone entering marriage has at least tacitly promised this. The mutual love of the married persons, he concludes, makes them into one person.
An important effect of the reciprocal love of the spouses, Wolff thinks, is that they want to share everything with one another, not just financially, but down to all the little details of their lives, facing both favorable and unfavorable events as a pair. Wolff notes that a man and a woman could commit themselves to such holistic sharing of lives, but if such a commitment didn’t involve procreation, this union would not be marriage. On the contrary, he adds, if the man and the wife do procreate and raise children, but otherwise do not share anything in their lives, this is a marriage, but far from a perfect one.
By nature, marriage is, according to Wolff, an equal society, where everything should happen with the consent of both the wife and the husband and each spouse has a right to declare their opinion on matters concerning such affairs as the upbringing of the children and the management of the household. Because marriage is a society with just two members, it is obvious that in a conflict of opinions the votes will always go even. Thus, Wolff advises, the spouses should agree with themselves beforehand who is to have the decisive vote in what matters.
More generally, Wolff says, the wife and the husband should determine by mutual consent what rules are to be obeyed in their family life. They may agree, he admits, that the wife transfers some or all their authority to the husband, and such transfer obliges the wife then to obey her husband. Indeed, Wolff notes, in some places such a transfer might be customary, and then a woman marrying a man is implicitly understood to have agreed to giving up of her authority. He points out that the law of nature does not command the wife to do so, but gives equal authority to both parties. Even if such an agreement has been made, Wolff advises the husband to temper his power over the wife with love, especially when the husband punishes his wife for disobedience.
The only obstacle for dissolving marriage that Wolff mentions is children who still need to be raised to adulthood. If the couple does not have such children and the laws of the land say nothing about the matter, marriage can be dissolved at will by either party. Wolff lists some reasons that should be a valid ground for divorce in any law, such as adultery, refusal to have intercourse, malicious desertion and irreconcilable hostility. Death of one spouse also naturally dissolves the marriage.
Once a marriage is dissolved, the former spouses can enter into new marriage contracts, which makes what Wolff calls successive polygamy licit. Indeed, he thinks it is even an obligation to marry, if you just have the necessary means for the economic requirements of a married life. Even if a person has promised to their dying spouse that they will not remarry, this promise is not valid, unless the reason for it is that the widow still has to raise their children. Wolff thinks that a man may take a new wife immediately after the dissolution of the previous one, but advises the women to wait until it is certain that they are not pregnant from the previous marriage.
In the special case of widowhood, Wolff states, the responsibility for the upbringing of the children remains on the surviving spouse. If the children have some property of their own, for instance, as an inheritance, Wolff allows using proceeds from that capital to cover the costs of raising them.
Wolff also considers the question, whether a spouse (in his examples, usually the husband) ever has an obligation to fund raising children of the other spouse (in the examples, usually the wife), conceived with another person. In case of children born from adultery, Wolff is clear that the responsibility lies with the adulterer. In case of remarriage, the remarrying person should reserve from their own property as much as is sufficient to cover their half of the expenses of raising children from the previous marriage. If the remarrying person is a widow and neither they nor their children have sufficient funds for this, Wolff advises the person marrying the widow to take care of the costs.
What about children born out of wedlock, and more generally, the question when a child is to be presumed an offspring of someone else? Wolff notes that the motherhood of the child is always certain, at least if the mother gives birth in the presence of others. As for fatherhood, he thinks that children born in marriage should be acknowledged by the father, unless there is proof of adultery. If no official marriage is in place and if the woman is known to have had intercourse with a man at a presumed time of conception, the man is obligated to acknowledge the child, unless she has had sexual relations with other men (in fact, Wolff thinks that no man needs to acknowledge the legitimacy of children of prostitutes or promiscuous women). If the man denies having had intercourse, the only test for deciding whether they lie is to ask them to take an oath on the matter (of course, methods have developed from the time of Wolff).
In any case, Wolff states, illegitimate children cannot be blamed for the deeds of their parents. Thus, their rights are to be just as same as those of legitimate children and their parents have the exact same obligations toward them. Furthermore, Wolff insists, illegitimacy is no stain on anyone’s reputation and no reason for dishonour.
