Thursday, 15 March 2012

(Is there) a legal definition of marriage?

According to the government's recently-released guide to their consultation on same-sex marriages, "There is currently no legal definition of religious or civil marriage" (2.9).  

That is quite a bold and categorical statement. It is also of fundamental importance, espcially when you remember CEM Joad's dictum, made famous on The Brains Trust, "It depends what you mean by ..."

That there is "no legal definition of marriage" may, furthermore, come as surprise to the Coalition For Marriage, who have been asking people to sign a petition that says, "I support the legal definition of marriage which is the voluntary union for life of one man and one woman to the exclusion of all others. I oppose any attempt to redefine it."

That's pretty stupid when there's no such thing as a "legal definition".

Except that it seems there is. Or at least, there may be - it all depends what you mean by a "legal definition".

A quick 'Google' of the definition shows that it goes back to James Wilde, First Baron of Penzance, who in 1866 presided in the polygamy case of Hyde vs Hyde and Woodmansee. His ruling gave a definition of marriage in the terms now quoted:
What, then, is the nature of this institution as understood in Christendom?...If it be of common acceptance and existence, it must needs have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.
Accordingly, this has been the accepted 'definition'. However, it is precisely his use of the term 'Christendom' which has caused some to question its acceptability.

Thus, in a paper published in 2007, Rebecca Probert of the University of Warwick presciently asks whether this is actually a definition of marriage, or rather "a defence of a traditional Christian model of marriage, which has been invoked whenever that model is under threat?"

Specifically, she considers whether the demand for same-sex marriage ought not to lead to "a more accurate definition of marriage for the twenty-first century".

And we all know the government's answer to that one, don't we?

So it all comes down to whether this is a definition of marriage or just a Christian definition of marriage (or indeed, what the government now seems to be working with, which is a variety of 'definitions' of marriage, one of which is the Christian definition - a form of 'religious' definition, yet to be defined in law - over against a civil marriage, which is something else, yet to be defined at all.)

I suppose the only other question we should ask is why a government document contains such a slipshod and misleading statement at the heart of its proposals - but perhaps that is a bit much to ask from them in this day and age.

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  1. I don't think we can discard the fact that Parliament licenses the 1662 Church of England prayerbook, in which the marriage liturgy defines marriage, and does so, not merely for the Church, but for the State.

    It's Parliament that speaks when the Church of England defines marriage as the union of a man and a woman, primarily for the procreation and rearing of children, with marriages other than what 'God's law doth allow' being unlawful.

  2. The idea that there is no legal definition of marriage sounds rather unlikely. If there is no definition, why is the Government proposing to change the law?

    The lawyers in the Department for Equality should have another look at the Marriage Act 1949; at least so far as a marriage in church is concerned the position is quite clear, because s. 7 requires the rubric in the BCP to be observed. It says: “At the day and time appointed for solemnization of Matrimony, the persons to be married shall come into the Body of the Church with their friends and neighbours: and there standing together, the Man on the right hand, and the Woman on the left, the Priest shall say”…Dearly beloved...

    David Brock

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