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Marriage past, present and future?

By Ellen Goodman - posted Tuesday, 29 March 2011


…..only one principle governs dealings between individual and state and that principle is, “that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

There are two aspects of the current definition of marriage which may be challenged in the future. Each addresses fundamental principles enunciated in Hyde v. Hyde

One is the requirement that a marriage be between a man and a woman and the second is that for a marriage to be valid it must be monogamous.

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Same sex unions are attracting widespread debate throughout Australia. They are officially recognized in numerous countries including, Argentina, Belgium, Canada, Iceland, Spain, Sweden and several states of the United States of America such as Iowa, New Hampshire and Vermont.

If we apply Mill’s principle to same sex marriage then we may conclude that if Jim and John marry, and Jane and Josie marry then neither of those marriages has any affect whatsoever on the marriage between Frederick and Francine.

Australia is now a country embracing a wide variety of cultures including some cultures in which polygamy, specifically polygyny, is practised.

Should such unions be recognized? Arguably a different issue arises compared with same sex marriage which is based on equality of the marital partners. This is not so with polygyny. Theoretically a husband in a polygynous marriage is expected to treat each of his wives equally. It is difficult to envisage this in practice. Both polygyny and polyandry are inherently unequal; in each case one marital party has access to more than one person within the marriage.

Both same sex marriage and polygamy can be analysed helpfully by reference to a debate conducted between Lord Patrick Devlin and Professor H.L.A.Hart. This debate was provoked by reference to the decriminalization of homosexual acts between consenting adults. Lord Devlin argued in The Enforcement of Morals that every society has a public morality, which presupposes a degree of consensus about a community of ideas and that the law may be utilized to preserve a society’s morality. Moreover newcomers to the society which he likens to moving into a household must accept the household as it is.

In a famous reply to Lord Devlin, Professor H.L.A. Hart responded to the effect that there exists a realm of morality which is private and which therefore is not the concern of the law.

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About the Author

Ellen Goodman was a senior lecturer in the School of Law at Macquarie University and is the author of the book The Origins of the Western Legal Tradition (Federation Press 1995).

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Creative Commons LicenseThis work is licensed under a Creative Commons License.

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