Not The Marrying Kind

A Feminist Critique of Same-Sex Marriage

N. Barker

• Publisher: Palgrave Macmillan
• Year: 2012
• Print ISBN: 9780230299825
• eBook ISBN: 9780230379725
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Not the Marrying Kind is a new and comprehensive exploration of the contemporary same-sex marriage debates in several jurisdictions including Australia, Canada, South Africa, the United Kingdom and the United States. It departs from much of the existing scholarship on same-sex marriage, which argues either for or against marriage for same-sex couples. Instead, this book begins from a critical analysis of the institution of marriage itself (as well as separate forms of relationship recognition, such as civil partnership, PaCS, domestic partnership) and asks whether and how feminist critiques of marriage might be applied specifically to same-sex marriage. In doing this, the author combines the theories of second wave feminism with insights from contemporary queer theory.

Part I

1

The Marriage Model

It is clear, then, that marriage is in its essence a simple contract which any person of either sex of normal intelligence should readily be able to comprehend. (per Karminski J, In the Estate of Park, Dec’d [1954] P 89 at 100)

Introduction

Marriage is frequently claimed, as above, to be a simple and universally understood institution. However, I suggest that it lacks a clear definition from either statute or common law in the UK and, despite Mr Justice Karminski’s clarity on the issue, the ‘essence’ of marriage is perhaps not as readily comprehensible as he suggests. While Lord Penzance’s formulation of marriage as ‘the voluntary union for life of one man and one woman to the exclusion of all others’ (Hyde v Hyde and Woodmansee [1866] L Rev 1 P&D 130 at 133) is generally cited in both case law and academic commentary as a common law definition (see, for example, Probert, 2007; see also Sharpe, 1997, and Bainham, 2002, describing it as the ‘classic’ definition; and Murphy, 2004 referring to it as the ‘traditional’ definition), it has been undermined by evolutions in the law of marriage (see also Murphy, 2002, p. 188). In fact, Sebastian Poulter argues that it was never wholly accurate, particularly in relation to the ‘for life’ requirement, since divorce was available before 1866 (1979, pp. 418–19). He also notes that the ‘actual rule’ in Hyde (that potentially polygamous marriages contracted abroad would not be recognized by English law) has disappeared following legislative reform (1976, p. 508). Despite this, the attitudes underlying Lord Penzance’s formula survive ‘through their very familiarity and constant repetition’ (1976, p. 508). Rebecca Probert also refers to the Hyde formula as ‘positively misleading as a definition of marriage’ (2007) and claims that Lord Penzance’s view was more a defence of marriage than a definition. She argues that, in the context of a perceived threat to Christian marriage by the potentially (though not actually) polygamous Mormon marriage of Mr and Mrs Hyde, ‘the desirability of the idea of marriage set out in Hyde was more important than its accuracy’ (2007, p. 322, emphasis added).

Examining each part of the ‘definition’ in the context of current marriage law bears this out.¹ A marriage entered into involuntarily is voidable rather than automatically void and as such could be upheld as legally valid (Matrimonial Causes Act 1973 (MCA) s. 12(c)). The availability of divorce means that marriage is not necessarily for life and the parties arguably need not intend it to be for life when they enter into a marriage. Though the Court of Appeal did suggest in Nachimson v Nachimson [1930] P 217 that the parties must intend a marriage to be for life, this ‘gloss’ put on the Hyde definition is described as ‘unsatisfactory’ by Lowe and Douglas (2007, p. 41) and it has subsequently been held that a marriage not intended to be for life was valid, though this case was confined to its facts (Vervaeke v Smith [1982] 2 All ER 144). Wade (1982) suggests that the courts may respond to ‘limited purpose’ marriages (that is, those that comply with the formal requirements but which are intended only for a limited purpose, such as immigration or tax avoidance) by resurrecting the historical concept of ‘mental reservations’ but, as I demonstrate below, the approach the courts have taken recently points to developments in the enforcement of romantic marriage ideologies of love and companionship rather than the absence of actual consent that mental reservations would imply.

While the criminal offence of bigamy enforces the ‘one man and one woman’ (or, in the case of jurisdictions that now allow same-sex marriage, ‘two people’) requirements of marriage, there are some, albeit limited, circumstances under which polygamous marriages can be recognized in the UK (see, for example, Radwan v Radwan (No 2) [1972] 3 WLR 939; MCA s. 11(d)). Furthermore, while non-monogamy is grounds for divorce (MCA s. 1(2)(a)), this would not make the marriage void but rather potentially bring it to an end: therefore a valid marriage exists despite the fact that it is not ‘to the exclusion of all others’. Additionally, adultery alone is not sufficient in itself to provide grounds for divorce, rather s. 1(2)(a) provides that the petitioner must also find it intolerable to live with the defendant. Most importantly in the context of this book, in some jurisdictions that had adopted the Hyde formula (Canada, Massachusetts), as well as in others where the common law definition of civil marriage was very similar (South Africa),² marriage is now available to two people of the same sex.

This brief examination of the legal institution of marriage casts doubt on any assumption, such as that of Mr Justice Karminski, that it is an essential, universal and natural institution. I suggest that looking at the Hyde formulation as an ideal rather than as a definition is, therefore, a useful way to think about marriage and invites consideration of what the essence of marriage actually is in contemporary UK law. Yet many of those advocating for same-sex marriage do not engage with these questions.

In this chapter, I explore the structure, legal consequences and ideologies of marriage to identify those characteristics that are at the core of the institution. I do this by examining statutory frameworks and judicial comments on marriage, primarily in the UK but also drawing on those of other common law jurisdictions. I refer to ‘the marriage model’ both to recognize that marriage is much more of an ideology than a fixed definition and to highlight the ways in which this ideology may be extended to forms of relationship that are not called marriage, such as the UK’s civil partnerships. In other words, the marriage model provides a framework to analyse the extent to which the legal recognition of same-sex relationships reflects the structure, ideology and legal consequences (in terms of the rights, obligations, benefits and burdens) of marriage but the ‘essence’ of marriage, in the sense of there being a consistent shared understanding of what marriage is, is much less certain.

Marriage and the marriage model

The question of what is the essence of marriage has arisen in a number of contexts, including: whether a 21-year-old woman with hydrocephalus and spina bifida who ‘functions at the level of a 13 year old’ had the capacity to marry a 37-year-old man with a history of sexual violence (Sheffield County Council v E and Another [2005] Fam 326 at 328); whether a Muslim couple who had gone through a civil marriage ceremony but did not ‘become husband and wife in any real sense’ in the absence of a religious ceremony had contracted a valid marriage (SH v KH [2005] SLT 1025 at para. 56); whether a long-term cohabiting same-sex partner was a spouse or family member for the purposes of tenancy succession under the Rent Act 1977 (Fitzpatrick v Sterling Housing Association [2001] 1 AC 27; Ghaidan v Godin-Mendoza [2004] 2 AC 557); and whether a same-sex marriage contracted in Canada could be recognized as a marriage rather than a civil partnership in the UK (Wilkinson v Kitzinger and Others [2006] EWHC 2022 (Fam)). In each of these cases, the courts drew on not only the strict legal formalities and requirements contained in the MCA and elsewhere but also, like Mr Justice Karminski, on what they assume are obvious, even universal, (social) understandings and norms of marriage. Partly because of the incorporation of such knowledge into legal precedent, it is impossible to determine where the line is between legal and social understandings of marriage; but that is not my aim here. Instead, I will argue that these are ideologies of marriage which, along with its legal structure and consequences, form the marriage model informing judicial as well as lay people’s expectations about how marriages will be lived out and what it means to be living as spouses.

Most significant in terms of upholding a particular understanding of the institution is the first part of the marriage model that I will examine: its (legal) structure. This refers to its entry and exit requirements or, in other words, who may marry and dissolve a marriage, under what circumstances and according to what formalities. This is the part of the marriage model that should carry the most weight because these rules are often regarded as integral to, even definitional of, the institution: the requirements for entry into marriage and structural assumptions about the marital unit have been relatively constant, both within UK law and between jurisdictions; and, when the structure is potentially altered (as in the case of same-sex marriage), particularly when this also involves its ideologies being challenged in some way (such as discussions of ‘no fault’ divorce), this is seen by some as a threat to the core of the institution itself (for examples of this in relation to same-sex marriage, see Sullivan 1997; Baird and Rosenbaum, 1997; 2004).

The second part of the marriage model that I will discuss are the legal consequences of marriage. These are, I suggest, the least ‘telling’ aspect of the marriage model, while nevertheless forming a part of it. The legal consequences are significant because they are set by the state rather than the parties themselves:

Its [marriage’s] distinctive character lies in the fact that English law will not allow husband and wife by contract (whether pre-or post-nuptial) to exercise the right, which it accords virtually all other partners, to make their own agreement as to the terms. (Cretney, 2003, p. 9)

The consequences that the state chooses to attach to marriage may provide an indication of the type of relationship it is intended to be. However, I put less weight on this aspect than on its structure and ideology because it has less public impact. Unlike the structure of the institution, the detail of the resulting legal consequences may be changed relatively easily without attracting much critical attention³ and varies significantly between jurisdictions (see Waaldijk, 2005 for illustrations of the differences between the legal consequences of marriage in nine European countries). I would suggest that, while people are generally aware of both the structure and ideologies of marriage, there is little awareness of its legal consequences. This is borne out by empirical research, which suggests that the legal consequences of marriage play a limited role in the factors that contribute to a decision to marry. Instead, people marry for a variety of reasons, such as demonstration of love, commitment and a sense of tradition or ‘old-fashioned’ values, that are much more closely linked to the ideologies of marriage as an institution than a recognition of its legal consequences (see Eekelaar and Maclean, 2004, pp. 517–23; Hibbs, 2001).

Finally, I return to the cases mentioned above to examine the ideologies invoked by the courts in deciding what marriage is. Ideology plays a significant role in family law and in this context often refers to a particular set of (conservative) ideologies. For example, Eva Havas (1995) discusses the role of family ideology in maintaining an individualized social system. There is, however, disagreement between theorists on the meaning of ‘ideology’ as a term and a concept, as well as with regard to its role in relation to law (see Eagleton, 1991; Hunt, 1985). For example, Eagleton outlines six possible definitions from a ‘general material process of production of ideas, beliefs and values in social life’ (1991, p. 28) to deceptive or false beliefs that arise from the material structure of society as a whole (1991, p. 31). Other definitions of ideology move away from its Marxist base towards language and discourse (Purvis and Hunt, 1993). I am using the term ideology to refer to the beliefs and discourses that underpin judicial understandings of marriage as natural and universal. Ideology here is the manifestation of an ‘ideal’ image of marriage. This is consistent with several theorists who argue that family law promotes an ideal family form: for example, Shelley Gavigan refers to familial ideology (discussed further in Chapter 5); and, as already noted, Alison Diduck (2003) distinguishes between families we live by and families we live with (see also, in the US context, discussions of the ‘channelling function of family law’: Schneider, 1992; McClain, 2007; for an argument that law more generally is used for ‘purposive social engineering’ see Smart, 1997, p. 312). The ideologies of marriage would be those pronouncements that tell us about the marriages we live by, our collective image of what marriage ought to be. This may bear little relation to the actual marriages that we live with but, through its incorporation into what have generally been accepted as judicial definitions, such as in the case of Hyde, what marriage ‘ought to be’ becomes what marriage is. In this way, ideologies of marriage form part of its (perceived) essence.

The structure, legal consequences and ideologies of marriage are interlinked and overlapping – in particular, the structure and consequences reflect as well as inform the ideologies of the institution – but, for the purposes of identifying the key features of marriage, I will discuss them separately here.

Structure

By structure, I refer to the parameters of marriage. In other words, as stated above, I refer to its entry and exit requirements: who may marry and dissolve a marriage and under what circumstances. In the UK, the structure of marriage is governed primarily by the MCA, which provides the circumstances under which a marriage will be void, voidable or may be dissolved. Parties must ‘opt-in’ to marriage through registering with the state in adherence with the formalities required by the Marriage Act 1949 (as amended). I argue that the provisions relating to the validity and formalities of marriage can be grouped into four overlapping categories: sexuality; monogamy; commitment; and protection.

The clearest indications that sexuality forms an integral part of the structure of marriage are the provisions relating to consummation, venereal disease and prohibited degrees of relationship. A marriage is voidable if it is not consummated due to one party’s incapacity or wilful refusal (s. 12(a) and (b)), or if one party was suffering from a communicable venereal disease at the time of the marriage. Consummation is defined as ‘sexual intercourse in the proper meaning of the term’. That is, ‘ordinary and complete intercourse; it does not mean partial and imperfect intercourse’ (per Dr Lushington in D-e v A-g (falsely calling herself D-e) [1845] 1 Rob Ecc 280 at 1045 (emphasis added); see Collier, 1995, p. 152). The definition of consummation, as upheld in Corbett v Corbett [1971] P 83, as well as the fact that a marriage is automatically void unless the parties are ‘respectively male and female’ (MCA s. 11(c)) indicate that marriage in the UK is not only a sexual institution but also that it remains a heterosexual one, at least as far as sexual performance is concerned.

It is possible for a marriage that has not been consummated to exist as a valid marriage. This is because non-consummation as such does not provide the ground for nullity, but rather the incapacity or wilful refusal to consummate does (see also Brunner, 2001). In fact if, inter alia, the petitioner was aware that the marriage would not be consummated at the time it was contracted, or had led the respondent to reasonably believe that she/he would not seek a decree, MCA s. 13 provides that a decree of nullity will not be granted. Furthermore, like any voidable provision, it will not be voided until one party petitions the court to do so. There is, however, a clear expectation within the MCA that marriages will be consummated. As such, (hetero)-sexuality is a part of its structure. It also appears that there may be a duty to maintain a sexual relationship, arising historically from the doctrine of consortium (Gaffney-Rhys, 2006; see legal consequences, below). Gaffney-Rhys examines two cases where the husband petitioned for divorce on the basis of infrequent sexual intercourse (P (D) v P (J) [1965] 2 All ER 456; Mason v Mason (1980) 11 Fam Law 143) and finds that: ‘These cases suggest that spouses are expected to engage in sexual intercourse during their marriage, but they do not indicate that a particular degree of regularity is required.’⁴

The exclusion of close relatives from marrying each other also indicates that marriage is expected to be a sexual relationship. If incest were not a presumed consequence of marriage between relatives, there would be little reason to prevent consenting adults from entering into marriage as a reciprocal legal arrangement, though other aspects of the structure of the institution would pose practical problems.⁵ Furthermore, the Law Commission explained the prohibited degrees provision in the Marriage Act 1949 by referring to sexual relations between family members as ‘unnatural and wrong’ (Gaffney-Rhys, 2006).

Second, and related to sexuality, is monogamy. In the Canadian context, Gillian Calder (2009, pp. 26–7) argues that the only part of the Hyde definition that remains essential in contemporary marriage is that it must be sexually monogamous. Monogamy is a central part of marriage in that bigamy/polygamy remains one of the few grounds upon which a marriage contracted in the UK will be automatically void (MCA s. 11(b)). This does not mean that ‘open’ marriages (a marriage that is between two people but non-monogamous in the sense that they also have non-marital sexual relationships with other people) will be void, or even provide grounds for divorce. The only ground for divorce in the UK is that the marriage ha...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of Cases
• Table of Legislation
• Acknowledgments
• Introduction
• Part I
• Part II
• Conclusion
• Bibliography
• Index