In light of the Marriage (Same Sex Couples) Act 2013, the Civil Partnership Act 2004 and the Gender Recognition Act 2004, the time has come to abandon Lord Penzance ‘s definition of marriage in Hyde v Hyde’.  Critically evaluate this statement.

            There are various legal definitions of marriage that excludes recognitions of marriage by people of the same gender. One such legal definition is the one provided by the Matrimonial Causes Act (section 11), which recognises marriage as being voids in the event that the parties 'are not respectively male and female'[1]. Elsewhere, Lord Penzance, in making his ruling in Hyde v Hyde and Woodmansee noted that '[m]arriage as understood in Christendom, may... be defined as the union for life of one man and one woman to the exclusion of all others'[2].  It is important however to appreciate that definitions of marriage are never cast in stone. A number of several cases involving transsexuals have invoked Hyde to justify the courts' decision to not acknowledge reassigned sex in regards to marriage. For example, in Cossey v United Kingdom[3], P, a male-to-female transsexual, had gone to court to challenge the Registrar’s refusal to issue her with a new birth certificate indicating that she was now a female, and not male. P argued that this was tantamount to a violation of respect to private life. In addition, she claimed that the decision infringed on her right to marry under the existing UK law. Both of her claims were dismissed by the Court, in effect invoking Lord Penzance’s definition of marriage.    

 Even though same-sex relationship is recognized by law, it may not the same as a spousal relationship. This was the ruling made by the County Court in Ghaidan V Godin-Mendoza[4], a case in which a homosexual; partner was seeking succession to a statutory tenancy as provided for by the 1977 Rent Act[5]. Although the meaning of a spouse as provided by the 1977 Act also applies to a homosexual couple, it would be discriminatory to deduce the Act as only being valid with respect to heterosexual couples as this would be tantamount to discrimination based on the Articles 8 and 14 of the 1998 Human Rights Act[6].

Nonetheless, Hyde v Hyde failed to constrain the reform of marriage law, with the 2004 Gender Recognition Act permitting “transexuals to marry in their reassigned sex in England and Wales”[7].  The 2004 Civil Partnership Act[8] has given same-sex couples a shot at marriage, something that Hyde v Hyde could not provide, by creating a legal union almost similar to marriage.  The Act grants civil partners same responsibilities and rights as married couples in diverse areas. However, there have been arguments to the effect that there are variations in terms of how the two institutions are perceived. While there have been arguments that same sex couples to marry in recognition of human rights legislation, the domestic court is yet to uphold these arguments, and neither has the European Court of Human Rights.

Again, it is evident that the 2004 Civil Partnership Act was passed even though it granted same-sex couples the powers to enter into a civil union, an indication that same-sex union is recognised by existing legislation. Therefore, Hyde v Hyde failed to prevent the passage of this Act.  In the same way, Hyde has not succeeded in preventing legislature from recognising same-sex marriage. The reason why the definition of marriage as provided for by Hyde v Hyde has assumed an air of authority about it is because successive judges in passing their rulings, have approved the ideas it states , and not and not on account of any independent authority that it might bear. From this context, we could argue that Hyde v Hyde was always deficient in its definition of marriage. We should not however translate this to men that those policy decisions lack validity, and neither should it imply that since certain jurisdiction have moved in a certain direction, this constitutes the right course of action to follow. A more intense criticisms to Hyde v Hyde could be that there is another meaning to marriage other than the one defined by policy and law.

Girgis, George and Anderson[9] are opposed to the 'constructivist' perception of marriage as 'just whatever we say it is', and noting that the independent reality of marriages hinges on biological union. They further contend that marriage involves a comprehensive union of one woman and one man sealed by the generative act that leads to the conception of a child. Accordingly, a union between people of the same sex cannot complete or consummate their relationship and is hence rooted in pleasure, which is not suited for this purpose. It is important however to note that the law has since taken a different turn.  Consequently, Hyde v Hyde is now largely viewed as nothing more than a defence of marriage, expressed in the context of Victorian concerns regarding Britain's position in the in the order of civilization. Today, the role of Hyde v Hyde appears to have been relegated to that of according precedence in the making of modern policy decisions.                                                                                                                                                                                                                                                                                                                                                                         

The 2013 Marriage Equality (Same Sex) Act went a step further than the 2004 Civil Partnership Act by recognising 'marriage' as 'the union of 2 people of the same sex to the exclusion of all others, voluntarily entered into for life'[10].  This again faults the definition of marriage provided by Hyde v Hyde which fails to give a description of the confines of marriage power. While Hyde v Hyde has clearly spelt out the characteristics of marriage such as a voluntary union, involving one woman and one man, for life, and 'to the exclusion of all others'[11], it nonetheless fails to confine the “juristic” or constitutional idea of marriage.

In sum, Hyde v Hyde gave a broad definition of marriage. Of particular importance is to acknowledge that many elements of this broad definition of marriage as provided by Hyde v Hyde were expressed in provisory terms, thus subjecting the definition to possible re-definition by the legislature.  This appears to have been the case with the passage of the 2004 Civil Partnership Act, the 2004 Gender Recognition Act and recently, the 2013 Marriage Equality (Same Sex) Act, perhaps as a reminder that the definition of marriage by Hyde v Hyde has been overtaken by events.  It is also a testament to the fact that a union between persons of the same sex is recognised by law as a basic human right. 

 

 

 

 

 

 

Bibliography

Cases:

Cossey v United Kingdom (1990) 13 EHRR 622

Ghaidan V Godin-Mendoza [2002] EWCA Civ 1533; [2004] UKHL 30

Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130

Legislation:

Civil Partnership Act 2004

Gender Recognition Act 2004

Human Rights Act 1998, s 2.

Matrimonial Causes Act 1973, s 11.

Rent Act 1977 (c. 42)

The Marriage (Same Sex Couples) Act 2013 (c. 30)

Books:

Jonathan Herring, Rebecca Probert and Stephen Gilmore: Great Debates in Family Law (Palgrave Macmillan 2012)

Articles:

Catherine Fairbain, Oliver Hawkins, Nerys Roberts, Doug Pyper and Djuna Thurley,’ Marriage (Same Sex Couples) Bill No 126 of 2012-13’ (2013)<

researchbriefings.files.parliament.uk/documents/RP13-8/RP13-8.pdf> [accessed 27 October 2016)

Sherif Girgis, Ryan T. Anderson, and Robert P. George,’ Marriage: Merely A

Social Construct?’ (2010) <http://www.thepublicdiscourse.com/2010/12/2263> [

accessed 27 October 2016].

 

 

 

 



[1] Matrimonial Causes Act 1973, s 11.

 

[2] Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130

 

[3] Cossey v United Kingdom (1990) 13 EHRR 622

 

[4] Ghaidan V Godin-Mendoza [2002] EWCA Civ 1533; [2004] UKHL 30

 

[5] Rent Act 1977 (c. 42)

 

[6] Human Rights Act 1998, s 2.

 

[7] Jonathan Herring, Rebecca Probert and Stephen Gilmore: Great Debates in Family Law (Palgrave Macmillan 2012)

 

[8] Civil Partnership Act 2004

 

[9] Sherif Girgis, Ryan T. Anderson, and Robert P. George,’ Marriage: Merely A

Social Construct?’ (2010) <http://www.thepublicdiscourse.com/2010/12/2263> [

accessed 27 October 2016].

 

[10] The Marriage (Same Sex Couples) Act 2013 (c. 30)

[11] Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130

 

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