Marriage and The Nuclear Family

Extract 1 : Marriage and the nuclear family.
Extract 2 : Same-sex Marriage: To Be or Not To Be?
Extract 3 : Alternatives to Marriage and Conclusion.

Same-sex Marriage: To Be or Not To Be?

A marriage will be void if "the parties are not respectively male and female."1 This apparently gave "statutory teeth"2to the nineteenth century case of Hyde v Hyde 3in which it was held that a lawful marriage comprised "the voluntary union for life of one man and one woman to the exclusion of all others.4" This immediately causes problems conceptually as the definition of union is not altogether obvious, and with the increase in the population of transsexuals, neither, it may be said, are the definitions of 'man' or 'woman'. However the (common) law has attempted to define the nature of that union in terms of heterosexual consummation, which for the purposes of marriage law is also of a phallocentric disposition.5 Dr Lushington, giving the leading judgment in the leading case of D-e6v A-g (falsely calling herself D-e) , held that consummation of a marriage could only arise through 'natural' sexual intercourse. By this he meant heterosexual, vaginal intercourse and nothing else, and was indeed of the opinion that:
"the true interest of society would [never] be advanced by retaining within the marriage bonds parties driven to such disgusting practices."7
Thus it was deemed that sexual deviance and 'unnatural' intercourse was one of the greatest evils against the true interests of society.8
The first time an English court was required to determine the legal meanings of 'man' and 'woman', and inevitably therefore of marriage, arose in the infamous case of Corbett v Corbett 9 The respondent was a post-operative male-to-female transsexual. 'Her' marriage broke down and the petitioner, her 'husband', sought a decree that the marriage was void because both parties were actually male or, in the alternative, that the marriage was never consummated. The decree was granted, the court relying on biological indicators of sex and, where these were ambiguous, genetic status. The decision spoke volumes for the biological determinism and immutability of sex of contemporaneous society and the legitimisation of this through the law. The reasoning demonstrates the typical conservative approach by the judiciary and "the power of judicial rhetoric to accept a contention as axiomatic and thus to dismiss any need for evidence to prove it or legal authority to validate it."10
"The European Court of Human Rights (ECHR) has repeatedly emphasised that particularly important features of a democratic society are 'pluralism, tolerance and broadmindedness'" 11, yet Corbett was upheld in Cossey v UK12 and Rees v UK13 . The right to marry under Article 12 of the European Convention on Human Rights was held not to have been infringed because it "referred to the traditional marriage between persons of the opposite biological sex."14Although it is generally thought that the Corbett test may now be weak authority, English law continues to be obsessed with exclusive heterosex. The ECHR has held recently that the continued reliance on Corbett, although not violating Article 12 of the Convention, does highlight the UK's failure to keep this area under sufficient review.15 There lies a further conceptual 'double jeopardy' that a post-operative male-to-female may not legally marry a man but may, in theory, marry a woman.16 Unless this can be invalidated on grounds of non-consummation, there must be a desperate need for reform, if only to make the law consistent with itself!
The Corbett decision has attracted strong criticism abroad and it should be noted that in many European countries - including France, Germany and Italy - similar marriages would be valid. In Attorney-General v Otahuhu Family Court17 the New Zealand High Court held that the ability to have sexual intercourse was not vital in determining the essential role of a man and woman in marriage. A greater emphasis was placed on the psychological and social aspects of gender rather than sex. This reasoning surely points the way forward for the UK and can only serve to endorse pluralism in the way the ECHR so desires.

 

  1. Mahendra "Sex in the Courts" (2000) 150 New Law Journal 1858[^ Return]
  2. (1866) LR 1 P&D[^ Return]
  3. Per Lord Penzance[^ Return]
  4. See Diduck and Kaganas supra. n. 10 at p. 45[^ Return]
  5. [1845] 1 Rob Ecc 280[^ Return]
  6. At p. 1045[^ Return]
  7. See Collier R. (1995) 'Masculinity, Law and the Family', London, Routledge[^ Return]
  8. [1970] 2 All ER 33[^ Return]
  9. Supra. n. 10, p. 50[^ Return]
  10. Bowley "Gay Rights - the Second Front" (2000) 150 New Law Journal 803[^ Return]
  11. [1991] 2 FLR 492[^ Return]
  12. (1987) 9 EHRR 56[^ Return]
  13. Rees at p. 123[^ Return]
  14. Sheffield and Horsham v UK [1998] 2 FLR 928[^ Return]
  15. The reverse situation thus also applies[^ Return]
  16. [1995] 1 NZLR 603[^ Return]

Extract 1 : Marriage and the nuclear family.
Extract 2 : Same-sex Marriage: To Be or Not To Be?
Extract 3 : Alternatives to Marriage and Conclusion.

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