Marriage and Casinos

It was the late, much-lamented Sir Alan Patrick Herbert, the last independent MP for Oxford University and extreme lateral thinker, who examined the definition of 'gaming transaction' and decided that marriage closely resembled a game of chance. His conclusion, therefore, was that the law should not assist people in settling their marital problems, since these proceeded from what in essence were wagers based on chance. He spent his latter years in Parliament agitating for the reform of divorce laws.

I will outline his argument from the humorous piece 'Is Marriage Lawful?', first published some time in the 1930s, and then quote his conclusion. Herbert begins with stating that "the common characteristic of every class of gaming transaction is this — that a person makes a sacrifice in the hope of receiving a benefit, but the reception of this benefit depends on the operation of chance and not upon the exercise of his own skill and judgment."

He then goes on to talk about racehorses and pronounces: "...the case of the prospective husband is ex hypothesi completely opposite. He is backing a horse that has never run before, or if his fancy be a widow, has never run over the same course in the same company. The form of a racehorse is public property, but the form of a bride is of necessity concealed."

His concluding argument went: "It follows that no experience, however extensive, is a certain guide, and no man's judgment, however profound, is in this department reliable. In all matrimonial transactions, therefore, the element of skill is negligible and the element of chance predominates. This brings all marriages into the category of gaming, and therefore I hold that the Court cannot according to law assist or relieve the victims of these arrangements, whether by way of restitution, separation, or divorce. Therefore it will be idle for married parties to bring their grievances before us, and in short, this Court will never sit again... any persons who want a divorce will be compelled in future to divorce themselves."

There will be many who read this and wonder if I espouse (ahem) Herbert's interesting legal philosophy on the institution of marriage. No, I am quite happy with the institution as it currently stands. But I was greatly amused when I first read his work decades ago, and continue to enjoy the products of that fertile and perspicacious imagination.