Lord Penzance's Definition of Marriage
It is impossible to provide a single definition of marriage due to the religious, cultural and ethnic diversity within our society1. However, the most cited definition of marriage in law is that in Hyde v Hyde & Woodmansee 2, where Lord Penzance defines marriage as:
"the voluntary union... of one man and one woman to the exclusion of all others3".
This definition puts forward two factors of marriage: firstly, that it is a voluntary union; and secondly, that it is between one man and one woman to the exclusion of all others. In order to critically discuss whether Lord Penzance 's definition of marriage reflects the contemporary legal position and social attitudes in England and Wales, with reference to legal authorities and academic commentary, both points will be considered in turn. It will now be considered whether marriage must be a voluntary union.
Each person marrying in the United Kingdom must give their consent. The Universal Declaration of Human Rights states that marriage shall be entered into only with the free and full consent of the intending spouses4. Likewise, according to the Matrimonial Causes Act5, a marriage is voidable when either party to the marriage fails to give a valid consent to it due to either duress6, mistake7, unsoundness of mind8 or otherwise9.
Justifiable reasons for non-consent has to be sufficiently serious and usually involves some threat of violence. In Buckland v Buckland10, it was found that a man had only agreed to marriage due to his reasonable fear of imprisonment in Malta if he had failed to comply with the marriage.
What should be noted is that according to the law, the lack of consent renders a marriage voidable and not void. This means that the marriage will exist in the eyes of the law until it has been annulled by the courts11. Without an annulment, it will be regarded as a valid marriage12. A person seeking to nullify their marriage on the grounds of non-consent would have to prove it. This may be difficult
"the voluntary union... of one man and one woman to the exclusion of all others3".
This definition puts forward two factors of marriage: firstly, that it is a voluntary union; and secondly, that it is between one man and one woman to the exclusion of all others. In order to critically discuss whether Lord Penzance 's definition of marriage reflects the contemporary legal position and social attitudes in England and Wales, with reference to legal authorities and academic commentary, both points will be considered in turn. It will now be considered whether marriage must be a voluntary union.
Each person marrying in the United Kingdom must give their consent. The Universal Declaration of Human Rights states that marriage shall be entered into only with the free and full consent of the intending spouses4. Likewise, according to the Matrimonial Causes Act5, a marriage is voidable when either party to the marriage fails to give a valid consent to it due to either duress6, mistake7, unsoundness of mind8 or otherwise9.
Justifiable reasons for non-consent has to be sufficiently serious and usually involves some threat of violence. In Buckland v Buckland10, it was found that a man had only agreed to marriage due to his reasonable fear of imprisonment in Malta if he had failed to comply with the marriage.
What should be noted is that according to the law, the lack of consent renders a marriage voidable and not void. This means that the marriage will exist in the eyes of the law until it has been annulled by the courts11. Without an annulment, it will be regarded as a valid marriage12. A person seeking to nullify their marriage on the grounds of non-consent would have to prove it. This may be difficult
Bibliography: Cases Buckland v Buckland (1967) 2 AER 300 Goodwin v UK [2002] 2 FCR 577 Hirani v Hirani (1982) 4 FLR 232 Hyde v Hyde & Woodmansee (1866) LR 1 PD 130 In the Estate of Park [1954] P 112 Parry v UK (Application No. 42971/05) SH v NB (2009) EWHC 3274 Consolidating Resources Conglomerate (2011) The Common Laws of Power: Unspoken Words Bloomington: AuthorHouse Herring, J "Forced Marriages: School Holidays Prompt Warning" (2013) BBC News UK http://www.bbc.co.uk/news/uk-23639070 [last accessed 28/11/13] Henrich, J Khatkar, P. (2011) "The British Muslim Men who Love 'Both their Wives '". BBC Asian Network: http://www.bbc.co.uk/news/uk-15032947 [last accessed 02/12/2013] Office for National Statistics (2011) http://www.statistics.gov.uk [last accessed 02/12/13]