Marriage past, present and future?
To understand the meaning, significance and symbolism of marriage it is more useful to look at the means whereby a marriage could and can be dissolved rather than the actual definition of marriage.
“Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others”, stated Lord Penzance on March 20 1866 in the case of Hyde v.Hyde and Woodmansee. This case involved a polygamous marriage solemnized according to Mormon rites. It was found to be invalid.
In Australia the Commonwealth has clearly defined powers and the states have all residual powers. The powers of the Parliament are set out in S.51 Constitution Act, (Cth.) 1901. This Act confers power on the Parliament to legislate with respect to ‘Marriage’ (S 51(xxi)). The Marriage Act (Cth) 1961 states “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
The most significant influence on the original conceptualization of marriage was the ancient canon law of the Roman Catholic Church with its defined standards of ‘good’ and ‘evil’. Thus from around the twelfth century marriage was a sacrament. Marriage, therefore, was perceived as something spiritual and consequently “higher” than a mere physical union. Acceptance of this dogma rendered marriage indissoluble.
In the United Kingdom marriage remained within the preserve of the Ecclesiastical Courts for several centuries. It remained indissoluble. Decrees of nullity, which declared that a marriage had never been a valid marriage, were available to the rich. But as Henry viii’s chagrins illustrate it was not a foregone conclusion that the Papacy would oblige. With the development of parliament it became possible to dissolve a marriage by act of parliament. For those without financial means there existed a market in “wives for sale”.
In 1857 by UK act of parliament disputes about divorce were vested in the civil courts. At that time the purpose of marriage was primarily to ensure the continuity of the male line, preservation intact of property and the forging of useful political alliances. Accordingly, marriage ceased to be perceived as a sacrament but rather as a state controlled contract for the public good. Grounds for divorce were widened.
In Australia marriage and dissolution of marriage remained within the jurisdiction of the states until the 20th century. This meant, among other things, that a person could find that they had been validly divorced in one state but that they could not marry in another because of lack of reciprocal inter-state recognition.
The first Australian uniform legislation governing divorce was the Matrimonial Causes Act 1959 (Cth.) It provided 14 grounds for the grant of a decree of dissolution of marriage ('divorce'), including adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity. Dissolution of marriage was based on notions of fault. Significantly, Western Australian legislation had included one non-fault ground for divorce, separation for a period of five years, but this was not included in the Federal legislation.
The most far reaching matrimonial causes legislation in Australia is the Family Law Act (Cth) 1975. It did away with all fault grounds for divorce. (Decrees of nullity are still available to a limited degree) . Section 48(1) of the Family Law Act states that the only ground for dissolution of marriage is that the marriage has broken down irretrievably. Either party to a marriage can file for a dissolution with or without the consent of the other party.
This legislation presupposes an entirely different understanding of marriage than that relied upon in the past. It presupposes a marriage entered into by the consent of the parties and a marriage which can be terminated by either party subject to prescribed formalities including that the possibility of reconciliation had been considered. The primary focus of matrimonial causes is no longer the marriage or its termination but rather the consequences of marriage breakdown such as parenting responsibility and property allocation.
Implicitly this legislation is informed by Enlightenment values of rationality, individualism, freedom of choice and secularism. It is based on the principle enunciated by John Stuart Mill in his essay On Liberty. He stated in an oft quoted passage:
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