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Wednesday 10 November 2010


Hyde v Hyde (1866): The 'Meaning' of 'Marriage'?

Posted in: Comment
By Craig Young - 18th October 2009

In most British Commonwealth debates over same-sex marriage, Hyde v Hyde (1866) keeps getting hauled out to back the discriminatory ambit of heterosexual-only marriage. But what else did it say, though?

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Ironically for supporters of continued marital discrimination, Hyde was a divorce case. The Hydes used to be members of the Church of Latter Day Saints, which practised polygamous marriage until forced to relinquish it in 1890, on pain of not being admitted to the United States. Mr Hyde married, then renounced his faith and was 'excommunicated" by authorities in Salt Lake City, whereupon he was 'divorced' from his previous spouse. The former Mrs Hyde remarried and her ex-husband contacted the English Court of Divorce and Matrimonial Causes so that they could be officially divorced on the basis of spousal adultery. Their Court refused to do so, arguing that Mormon polygamy was at odds with the comprehension of marriage in the United Kingdom. Lord Penzance argued that 'as understood in Christendom... [marriage] may be defined as the voluntary union for life of one man and one woman, to the exclusion of all others." As Hyde was party to a "non-Christian" marriage, he wasn't entitled to matrimonial law remedies.

Much has changed since 1866. From 1847, New Zealanders have been able to contract civil marriages and there is no established faith or denomination here, so that secular and duly solemnised marriages by celebrants of other great faiths are regarded as wholly legal. Divorce law liberalisation has meant that marriage need not be lifelong. Spousal rape legislation criminalised that form of sexual violence, spousal property redistribution meant that divorced partners were entitled to a share of their partners property on dissolution of their relationship and post-operative transwomen are recognised as straight women if they marry someone of the opposite sex. Essentially, marriage has been reduced to a voluntary union and specified order of ceremony set out in the Marriage Act 1955.

Why shouldn't lesbians, gay men or pre-operative transpeople have access to marriage as well? It seems resilient enough to have weathered the above, although one must bear in mind the disgraceful SPCS campaign against criminalisation of spousal rape in New Zealand in the early eighties. Even given that heterosexual marriages are far more unstable than civil unions, only eight of which have been dissolved since their inception in 2005, is there any convincing reason to continue to provide discriminatory interpretations of the Marriage Act 1955?

Recommended:

Hyde v Hyde (1866) LR 1 P&D 130 (p106): in H.Colebrook and P.Jensen (eds) Butterworth Student Companion: Family Law: Butterworths: Wellington: 1999.


Craig Young - 18th October 2009

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