The Traditional Definition of Marriage - Case Study Example

How Far is the traditional definition of marriage “a voluntary union for life of one man and one woman to the exclusion of all others” still applicable to English law, particularly in light of the legislative and other developments such as the Civil Partnership Act 2004 and the Gender Recognition Act 2004? 1. Introduction In Lord Brougham’s speeches discussing proposed divorce law reform, he asserted that there “there is no one branch of the law more important, in any point of view, to the great interests of society……than that which regulates the formation and the dissolution of the nuptial contract. No institution indeed more nearly concerns the very foundations of society….than that of marriage”1. It is evident that the relationship between law and social behaviour has always posed a difficult balancing act for legislators. Any social issue or trend inherently proliferates at a staggering rate with any responsive legislation arguably being out of date and inadequate on implementation. In English law, the classic paradigm of marriage is defined by the famous dictum of Lord Penzance in Hyde v Hyde was stipulated as the “voluntary union for life of one man and one woman to the exclusion of all others2”. This definition clearly asserts the heterosexual nature of marriage, which is further bolstered by the provisions of section 11(c) of the Matrimonial Causes Act 1973 (MCA), which provides that a marriage shall be void on grounds that the “parties are not respectively male and female”. However, some commentators have criticised this legal position and Bradney asserts that “this principle has a mythical status in English law, widely cited disregarding its inherent legal falsity”3. Indeed, it is further arguable in light of the Civil Partnership Act 2004 and the Gender Recognition Act 2004 that the basis upon which section 11(c) of the MCA and the Hyde definition of marriage operates is now doubtful and the focus of this analysis is to critically evaluate the extent to which the traditional legal definition of marriage is still applicable to English law in light of recent developments. In doing so, I shall evaluate the traditional legal definition of marriage and how this legal framework for regulating relationships has come under fire for excluding valid relationships outside purely heterosexual union. 2. Traditional Legal Definition of Marriage & the Civil Partnership Act 2004 If we consider the basis of the traditional definition of marriage, English law has characteristically adopted a conventional position of asserting the primacy of heterosexual union4. O’Donovan highlights how “it is hard to escape the iconography of saintly motherhood, authoritative father, the holy family. These venerated icons inform our ways of seeing, our ways of thinking”5. However, the Civil Partnership Act 2004 now provides for a registered partnership system, which provides similar rights and responsibilities to civil marriage particularly in relation to property rights, social security and the right to obtain parental responsibility for children6. Moreover, the 2004 Act puts same sex couples in the same legal position as heterosexual couples in respect of social security and inheritance tax, which has led some commentators to posit that the Hyde definition of marriage as the voluntary union between man and woman is now inapplicable under English law. However, whilst the 2004 Act is clearly a welcome example of family law adapting to the reality of contemporary relationships, the Act is phrased in terms of being a partnership and not a marriage. As such, it is arguable that whilst the legal consequences of both types of union are the same, the framework is different, thereby maintaining the political goals of alleviating concerns regarding the preservation of the traditional concept of “marriage”7. Indeed, some commentators argue that the concept of “marriage” in terms of being the voluntary union of man and woman is in fact upheld by the Civil Partnership Act 2004 by providing an alternative legal framework outside marriage to address same sex relationships8. On this basis, it is submitted that whilst the 2004 Act does not permit same sex couples to wed, or divorce on grounds under the MCA, it grants same sex couples quasi marital status in both public and private law9. Alternatively, the result of the 2004 Act has not provided the change to the law that was expected in terms of legal recognition of civil partnerships. For example, in the case of Wilkinson v Kitzinger and HM Attorney General10, it was held that a same sex Canadian wedding could only confer civil partnership here in the UK and not marital status as in Canada, which further negates the argument that the Hyde definition is no longer applicable under English law. Moreover, in this decision, the status as a civil partnership as opposed to marital status was held not to constitute a breach of human rights under the European Convention on Human Rights in light of the fact that only three members of the Council of Europe formally recognised same sex marriage11. On this basis, it would appear that the traditional definition of marriage is still applicable and the quasi-marriage status under the 2004 Act operates independently and is not defined as a “marriage” as such. Nevertheless, the 2004 Act provides similar rights to marriage in terms of the property rights and dissolution procedures, which serves one of the essential reasons why marriage developed as a legal institution originally in order to legitimise property arrangements within the “context of a sanctioned, state controlled relationship”12. Moreover, the concept of marriage traditionally developed as a device to legitimise sexual relationships and children13. Indeed, the 2004 Act in introducing the registered partnership provides a halfway house as during the passage of the bill, there was some criticism on grounds that the Act would dilute the value of “marriage”. However, it is submitted that the 2004 Act does not threaten the Hyde definition of and the institution of marriage. Rather, it acknowledges that committed relationships exist outside the parameters of marriage and that there is a requirement for legal regulation and parity of rights akin to marriage and the consequences of relationship breakdown. As such, whilst both the concept of marriage and the civil partnerships remain legally distinct, the changes to the law in granting of similar property and parental responsibility rights under the 2004 Civil Partnership Act in parity with rights to married couples would support the view that changes in the “values of society, the status of illegitimates…. have robbed the institution of much of its regulatory quality in the area of sexual behaviour”14. 3. Transsexuals, Marriage and the Law. However, as regards transsexuals the position is now different and appears to place this group in a strengthened position. Firstly, the Marriage (Prohibited Degrees of Relationship) Act 1986 addresses the marriage rights of transsexuals. Moreover, the eight grounds for a voidable marriage under section 12(a) to (h) of the MCA 1973 have been amended by the implementation of the Gender Recognition Act 2004. Under the 2004 Gender Recognition Act 2004, an individual with a full Gender Recognition Certificate is entitled to new birth certificate reflecting the acquired gender and will be able to marry someone of the opposite gender to his or her acquired gender. On the one hand, this change supports the argument that the traditional definition of marriage is no longer applicable. However, if we consider by comparative analysis the rights of same sex couples under the Civil Partnership Act, whilst providing a legal framework for such relationships, the legal status is framed as a civil partnership. However, the legal definition of “marriage” remains in tact and the civil partnership reflects the social acceptance of a homosexuality as a reality, which deserves the granting of legal rights to address serious committed relationships. In contrast the Gender Recognition Act 2004 serves to assert the rights of transsexuals to have their gender change operations acknowledged legally, which enables them to fall within the definition of “man and woman”, for the purposes of the traditional definition of marriage under the Hyde dicta. The traditional position in UK law regarding transsexuals was that in the case of Corbett v Corbett15 where Omrod J asserted that “marriage is a relationship which depends on sex rather than gender” and only those capable of heterosexual intercourse could marry. However, the interpretation of the ECHR has been extended to confer protection to transsexuals16. Whilst earlier ECHR cases refused to interfere with domestic law that had refused to recognise rights of transsexuals to marry and to choose their identity, in the landmark decision of Goodwin v UK17, the Grand Chamber of the EC held that there had been violation of Articles 8 and 12 of the convention where the applicant had complained that they could not exercise their right to marry under Article 12 of the ECHR. In considering the practical application of ECHR case law to the UK position post 1998 as a result of the implementation of the Human Rights Act 1998 (HRA), section 2(1) of the HRA asserts that “A court or tribunal, determining a question which has arisen in connection with a Convention right must take into account Convention rights” and any determinations by the European Court of Human Rights18. Moreover, whilst the HRA does not in fact implement any Bill of Rights as such, section 3(1) does impose a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”. Accordingly, the HRA “has had the effect of incorporating the European Convention on Human rights into our law giving individuals rights which can be directly enforced in the UK courts19”. As such, section 3 of the HRA requires UK judicial authorities to interpret any legislation whether primary or subordinate in a manner which is compatible with Convention rights. Prior to the implementation of the HRA, the function of the courts in relation to Parliamentary legislation was limited to the interpretation and application of that which was placed before them20. The direct incorporation of the ECHR into national law arguably goes further whereby the role of the judiciary is to act as guardian to individual human rights21. As such, it is argued that the HRA sets a new standard for all new legislation and provides essential powers to UK courts to enforce Convention rights, thereby arguably forcing Parliament’s hand to change legislation that is incompatible due to the obligation under section 4(2) of the Act to make declarations of incompatibility22. If we consider this directly in relation to the rights of transsexuals and homosexuals, in the case of Bellinger v Bellinger23 it was held by the House of Lords that it was impossible to interpret “man and woman” as person who had undergone gender reassignment to comply with the Goodwin case and therefore the applicable legislation was incompatible. Moreover, in the case of Mendoza v Ghaidan24 the House of Lords they interpreted the statutory term “wife or husband” to give homosexuals the right to inherit a partner’s tenancy to comply with Article 14 of the ECHR. Interestingly, the House of Lords declared in the Bellinger case that a refusal to recognise a transsexual’s post operative gender was contrary to Articles 8 and 14 of the ECHR. Moreover, the Gender Recognition Act 2004 now regulates these rights. As such, domestic law is certainly adjusting specific privacy claims to address the rights of transsexuals and homosexuals and forcing the UK courts to address compatibility seriously in light of the ECHR jurisprudence. 4. Conclusion The above analysis highlights the intrinsic difficulty of providing a coherent all inclusive legal framework for social relationships. Nevertheless, it is submitted that the legal consequence of the Civil Partnership Act 2004 and the Gender Recognition 2004 are welcome in acknowledging the rights of same sex couples and transsexuals in line with their heterosexual counterparts. However, as regards the civil partnership, this remains a registered partnership and to this end preserves the Hyde definition of “marriage” for the purposes of English law. Nevertheless, the legal consequences of the civil partnership would suggest that the legal distinction between marriage and the registered partnership is academic and further supports Ghandi’s view that family law should depend on the nature of the particular relationship and which party is dependent on whom25. As such, the implementation of the 2004 Acts has made family law more inclusive as regards the reality of contemporary familial relationships. BIBLIOGRAPHY Barlow, A., Duncan, S., James, G., and Park, A., (2005) Cohabitation, Marriage and the Law-Social Change and Legal Reform in the 21st Century. Oxford Hart Publishing Anthony Bradney, (1987) “Transsexuals and the law”. Fam Law 350 at p.350. Cretney, S. (2006). Same Sex Relationships: From “Odious Crime” to “Gay Marriage”. Oxford University Press. A Diduck., & F Kaganas., (2006). Family Law, Gender and the State: Text Cases and Materials. 2nd Edition P. Ghandi (1991). The Family in UK Law. 5 International Law Journal of Law and Family 104. J. Herring., (2007). Family law. 3rd Edition Longman Kennedy (1973), Transsexualism and single sex marriage” 2 Anglo American Law Review 112 Lowe., & Douglas., (2006). Bromley’s Family Law. 10th Revised Edition LexisNexis UK. Mykituik Roxanne, Family Law: Cases and Materials, Osgoode Hall Law School, (2006) K. O’Donovan (1993). Family Law Matters (Law & Social Theory). Pluto Press R, Probert., (2006) Cretney’s Family Law., 6th Revised Edition (2006) Sweet & Maxwell Statutes Matrimonial Causes Act 1973 Marriage (Prohibited Degrees of Relationship) Act 1986 Civil Partnership Act 2004 Gender Recognition Act 2004 All available at www.opsi.gov.uk Read More