Victorian definition of marriage does not take us much further

“Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others.”

• Lord Penzance

A couple of days ago I wrote here about a debate on Radio 2 in which the Campaign Director of the Coalition for Marriage said that the ‘liberalising’ of divorce law by the introduction of no-fault divorce would fundamentally change what marriage is, reducing it to “essentially a tenancy agreement”. At the beginning of the post I mulled briefly on just what marriage means. I said that I was not aware of any definition of marriage in English law.

Since then Dr Brian Sloan, a lecturer in law at Robinson College, Cambridge, has quite correctly pointed out to me on Twitter that Lord Penzance did, of course, offer the above definition, in the 1866 case Hyde v Hyde and Woodmansee. If you are not a family lawyer and the words sound familiar to you then that will be because they form in part the introduction to the civil marriage ceremony in England.

To be honest Lord Penzance’s famous dictum (see below) had quite slipped my mind when I wrote my previous post, but in any event, when I was referring to a legal definition of marriage I was thinking about statutory definitions, rather than common law (i.e. judicial) ones – statutory definitions being, for obvious reasons, more ‘official’ than common law ones.

In any event, I don’t think Lord Penzance’s definition (if that’s what it is – see also below) takes us much further.

The first thing to say about the definition is that it was, as indicated, dictum. ‘Dictum’ (or its plural: ‘dicta’) is a bit of legal jargon, related to the Latin phrase ’obiter dicta’, which has various English translations but essentially refers to something that the judge said ‘in passing’, rather than something that was essential to their decision. As such, it is not binding as a precedent, and is therefore a ‘lesser’ authority. Obviously, if we are searching judicial utterances for a definition of ‘marriage’ then we would ideally want to find something that the judge intended to be an authoritative precedent.

Further to that, Lord Penzance’s words may not amount to a definition of marriage at all. In a 2007 paper Rebecca Probert of the University of Warwick argued that Lord Penzance’s description should be understood as a defence, rather than as a definition, of marriage. I’ve not read the paper, but a short explanation of what Hyde was about may give an indication of her argument. Hyde was an action for divorce brought by an English former Mormon on the grounds of his wife’s adultery. The basis for the suit was that his wife had left him and remarried in Utah, where polygamous marriage was allowed, and where Mr Hyde’s marriage had taken place. Lord Penzance’s comment was the introduction to his finding that such a marriage was not valid under English law, and that therefore Mr Hyde’s claim was dismissed. Ms Probert may therefore have been arguing that Lord Penzance was simply defending the ‘English’ institution of marriage, rather than defining it.

Whatever, even if Lord Penzance’s words were a definition, there are of course serious issues with them, arising primarily from the fact that they were uttered in a quite different age. I will not go into detail here, but three points spring immediately to mind. Firstly, marriage is of course not just confined to Christians; secondly (as Ms Probert pointed out) the courts have not insisted that a marriage be ‘for life’; and thirdly, of course, marriage in this country today is not confined to opposite-sex couples.

And finally the definition still says nothing about any obligations of one spouse to the other. As I said in my previous post, these are left for the parties to decide, and will no doubt vary considerably from one marriage to the next.

Which links back to the argument against no-fault divorce – the only thing that Lord Penzance’s definition really says is that when two people marry they commit to one another. As I also said in my previous post, that commitment will not alter simply because some people can get divorced more quickly than they could previously. Whatever marriage is, no-fault divorce will not change it.

You will find a report of Hyde v Hyde here.