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Family law - Essay Example

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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…
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Download file to see previous pages 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 Any social issue or trend inherently proliferates at a staggering rate with any responsive legislation arguably being out of date and inadequate on implementation.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.
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 ...Download file to see next pagesRead More
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