The Voluntary Union for Life - Essay Example

Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others” (Hyde vs. Hyde and Woodmanse): A discussion of its relevance to the law on relationships 2008 Introduction The facts of the case of Hyde vs. Hyde and Woodmanse1 are as follows: “The Petitioner claims dissolution of his marriage on the ground of the adultery of his wife. The alleged marriage was contracted at Utah, in the territories of the United States of America, and the petitioner and the respondent both professed the faith of the Mormons at the time. The petitioner has since quitted Utah, and abandoned the faith, but the respondent has not. After the petitioner had left Utah, the respondent was divorced from him, apparently in accordance with the law obtaining among the Mormons, and has since taken another husband. This is the adultery complained of. The court dismissed the petition.2 The court in its decision said that it do not recognize the marriage because in England, it do not recognize marriage conducted in a polygamous country. It doubted on the practice of the Mormons on allowing polygamous marriage if it is really a marriage. ‘A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a marriage as understood in Christendom; and although it is a valid marriage by the lex loci, and at the time when it was contracted both the man and the woman were single and competent to contract marriage, the English Matrimonial Court will not recognise it as a valid marriage in a suit instituted by one of the parties against the other for the purpose of enforcing matrimonial duties, or obtaining relief for a breach of matrimonial obligations.’ Being the case, it could not grant the petition for divorce since no marriage took place.”3 What made this case famous was the said dictum of Lord Penzance regarding marriage: “Marriage as understood in Christendom, may…be defined as the voluntary union for life of one man and one woman to the exclusion of others.4 This description of marriage, set out by Lord Penzance in Hyde v Hyde and Woodmansee, continues to exert considerable power. It has been described as the ‘classic’, ‘famous’, and even ‘hallowed’ definition of marriage.5 Whenever judges refer to the definition of marriage in English law, it is invariably Hyde v Hyde and Woodmanse (Hyde v Hyde, for short) that is cited.6 One explanation for the influence of this case is that Lord Penzance articulated the ‘traditional’ definition of marriage – one might hypohesise that Lord Penzance’s dictum carried weight simply because it was the first definition of marriage to emanate from the new Court for Divorce and Matrimonial cases.7 Rebecca Probert in her article entitled Hyde v Hyde: defining or defending marriage (1 September 2007) said that the dictum was not intended to be an authority in determining the legal definition of marriage. “Lord Penzance had made it clear in his judgment that he was not in fact seeking to lay down rules for all future cases,” says Probert. The dictum has been accorded authority simply because successive judges have used it to defend a particular idea of marriage, not because it bears independent authority as definition.8 But the convenience of invoking it to deny legal status to certain types of marriages should not obscure the policy decision inherent in choosing Hyde v Hyde as an authority.9 Probert further stressed that the argument advance in the article she wrote is that Lord Penzances’ dictum “should not be regarded as a definition of marriage but as a defence, and that it has been used as a defence rather than a definition by subsequent judges.”10 However, in a number of cases following the Hyde case, judges made use of Lord Pencanze dictum in deciding cases involving marriage. Re Bethel11, Brinkley v Attorney General12 and Nachimson v Nachimson13 are some of the cases that made used of Lord Pencanze dictum. By far, the largest group of cases to invoke Hyde concerned actually or potentially polygamous cases.14 Relevance of Lord Pencanze’s Dictum to the law on relationships in 2008 The dictum in the Hyde v Hyde case is related to the law on relationship in 2008 not because of the increasing number of polygamous marriages but because of the increasing number of same sex marriage worldwide and the number of countries recognizing it. The recognition of sex marriage began in Netherlands in 1991, followed by Belguim in 2003, and in 2005, it was a race between Spain and Canada to become the third world country to allow same sex couples to marry.15 Article 9 of the recent European Union Charter of Fundamental Rights reflects these changing social norms: the implicitly heterosexual formulation of ‘men and women” in earlier versions is gone, and the ‘right to marry’ is stated as distinct form ‘the right to found a family’.16 The increasing number of same sex marriages and the countries recognizing same sex marriage puts a challenge to the concept of Christian marriages in England which is the “union of one man and one woman, to the exclusion of others”. At present, England maintains its heterosexual policy of marriage, which is only between a man and a woman. In cases of homosexual marriages by other countries, England refuse to recognise it as it would be against public policy. Homosexual marriage as herein understood people of the same sex, such as gays or lesbians A test on the acceptance of homosexual marriage outside England to be recognized as valid marriage in England was put into test in the case of Wilkinson vs. Kitzinger: “A British lesbian couple, Sue Wilkinson and Celia Kitzinger, were married in 2003 in Vancouver, British Columbia, where Wilkinson was working at the time. Upon her return to England, she and Kitzinger instituted proceedings to have their Canadian marriage recognised as a marriage under section 5 of the Family Law Act 1986. They based their claim primarily on human rights principles and sought, failing recognition of their marriage in English law, a declaration under section 4 of the Human Rights Act 1998 that section 11(c) of the Matrimonial Causes Act (MCA) 1973 and Chapter 2 of the Civil Partnership Act (CPA) 2004 were incompatible with the obligations imposed by Articles 8, 12 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. On 13 July 2006 in the Family Division of the High Court, the President of the Family Division, Sir Mark Potter, dismissed the petition. This is a case about the meaning of marriage in contemporary Britain. By this I mean not simply its definition in English law, nor even the rights, responsibilities and privileges currently attaching to it in this jurisdiction, but the significance of marriage in the eyes of the petitioner and those of the judge. It was not necessary for Potter P to go beyond the legal definition of marriage in English law in order to dismiss the claim: if marriage is the union of a man and a woman, then a union of two women cannot be marriage — end of story. A pear is not an apple; they may be similar in many respects, but they are not the same.” 17 Rejecting Hyde v Hyde as a Defence for Homosexual Marriages John Murphy in his article entitled Same-Sex Marriage In England: A Role for Human Rights considered this case as unhelpful approach in addressing the issue on homosexual marriage.18 Applying the Human Rights Approach in Defence of Homosexual Marriage Rosemary Auchmuy in her article entitled “What’s so special about marriage? The impact of Wilkinson v Kitzenger” commented on the human rights principles relied by the petitioners in this case in their quest to have the approval of the courts in England: “ Article 8 provides that: Everyone has the right to respect for his private and family life, his home, and his correspondence. Relying on the House of Lords decision in M v Secretary of State for Work and Pensions, Potter P found that childless same-sex couples did not constitute a family for the purposes of the right to respect for family life guaranteed under Article 8. He further held that denying same-sex couples the right to marry did not interfere with their private or family life8 since the CPA accords them the benefits of marriage in all but name. There was therefore no violation of this Article.19 On her comment on Article 12: “Article 12 provides that: Men and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right. Potter P relied on the final phrase to reassert that the national laws of England confined marriage to heterosexual couples. Counsel for the petitioner argued that Goodwin v United Kingdom, in which the European Court of Human Rights found the British government to be in breach of Article 12 for denying the right of a post-operative transsexual to marry a person of the same biological sex, released English law from a strict biological definition of marriage. Potter P, however, read this case as reinforcing the English rule: for him, the transsexual became legally a person of the opposite gender and thus free to marry. There was no breach of Article 12, not simply on account of the wide margin of appreciation available to national states to define marriage as they wished, but also because the English definition was almost universally accepted throughout Europe and the one the framers of the Convention would have had in mind. Potter P quoted Lord Hopes comment in Bellinger v Bellinger to the effect that problems of great complexity would be involved if recognition were to be given to same sex marriages. They must be left to Parliament.”20 Auchmuty further commented: “ Article 14 guarantees the application of Convention rights without discrimination on grounds of sex and a range of other characteristics. Sexual orientation is not mentioned but has been accepted as a ground for action. A breach of another Article is not a prerequisite but the facts of the case must come within the ambit of the relevant Article/s. Potter P found that the facts here did not come within the ambit of Article 8. He rejected the arguments of counsel for the petitioner that, in not recognising their marriage, English law demonstrated a lack of respect for her private life (specifically, her sexual orientation and choice of spouse) and for her family life, in not according her relationship the same value as heterosexual marriage. Potter Ps view was that her private life had not been intruded upon nor her family life threatened in the sense contemplated by the Convention, which was intended to deal with de facto rather than de jure situations or questions of status: the withholding of recognition of the relationship between the petitioner and first respondent does not impair the love, trust, mutual dependence and unconstrained social intercourse which are the essence of family life.21 The Future of Homosexual Marriages in United Kingdom The Civil Partnership Act 2004, give same-sex couples rights and responsibilities identical to civil marriage. Civil Partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partners children, as well as responsibility for reasonable maintenance of ones partner and their children, tenancy rights, full life insurance recognition, next-of-kin rights in hospitals, and others. Where a same-sex couple has registered an overseas relationship which is specified in Schedule 20 of the Civil Partnership Act, or meet certain general conditions, they are treated as having formed a civil partnership. The requirements can be found in section 212 and sections 215 to 218 of the Act. The Gender Recognition Act 2004 is an Act of the Parliament of the United Kingdom that allows transsexual people to change their legal gender. It came into effect on April 4, 2005. The Act gives transsexual people legal recognition as members of the sex appropriate to their gender (male or female) allowing them to acquire a new birth certificate, affording them full recognition of their acquired sex in law for all purposes, including marriage. 22 Conclusion: The case of Hyde v Hyde is relevant to the law on relationships 2008 not because it became a legal basis on what a marriage should but because of the fast growing numbers of states recognizing marriage which are beyond the definition given by Lord Penzance. What this case is trying to tell us is not the legality of the marriage but the consequences it might have on the relationship if it is done between same sexes. Every form of marriage has its own rights and responsibilities, however, nothing compares when it is done between a man and a woman. The key point here is not that every possible form of marriage should be legalised, but that careful thought should be given to why certain forms of relationship are labelled marriage and others not.23 It is time to recognise that the words of Lord Penzance in Hyde have only the authority we are prepared to give them, and move the debate on. Hyde should be seen for what it is: a case of considerable historical interest, that tells us a great deal about the attitudes of mid-Victorian England — but nothing about how marriage should be defined today.24 A more meaningful definition of marriage was advanced by Thorpe LJ, who delivered a dissenting judgment in the Court of Appeal in Bellinger v Bellinger25. He suggested that marriage should be defined as a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligations.26 Unlike Lord Penzances words in Hyde, this actually distinguishes marriage from cohabitation, in identifying the fact that both entry to and exit from marriage is regulated by law, and that the relationship brings certain rights and responsibilities.27 It may be less poetic than Hyde, less prescriptive about the nature of the parties relationship, less likely to be recited at the start of the marriage ceremony — but it is still aspirational in one sense, in that it looks forward to a time when marriage can be defined in gender-neutral terms. It may yet become an accurate definition of marriage in the twenty-first century.28 Bibliography Auchmuty, R. “What’s so special about marriage? The Impact of Wilkinson v Kitzinger”. (please include here the source) “Explanatory Notes to Gender Recognition Act 2004 Chapter 7”. Retrieved on March 25, 2009 from < http://www.opsi.gov.uk/Acts/acts2004/en/ukpgaen_20040007_en_1.htm> “Civil Partnership Act 2004”. Retrieved on March 26, 2009 from “Gender Recognition Act 2004”. Retrieved on March 26, 2009 from “Hyde v. Hyde and Woodmansee (1866) [L.R.] 1 P. & D. 130”. Courts of Probate and Divorce. Retrieved on March 25, 2009 at from Murphy, J. “Same-Sex Marriage in England: A Role for Human Rights?”. (Please include here the source) “Nature and Formation of marriage”. UK Law Teacher. Retrieved on March 25, 2009 from Probert, R. “Hyde v Hyde: defining or defending marriage”. (please include here the source) UK challenged the right to civil partnerships of gay couples abroad. Guardian.co.uk. Retrieved on March 25, 2009 from Read More