The success of the same-sex marriage ban in California and some related discussion has reminded me that I have long planned to write more about the legal issues surrounding marriage. Since I don’t expect to have time in the near future, I have dug out an essay I wrote on the topic back when I was studying family law.
The essay is below the fold, in its original form. If I had the time, there are things I was unhappy with in the work – I did not have enough space to adequately explore the arguments surrounding polygamy, and I did not articulate clearly enough that the UK’s approach is a compromise (equivalent to marriage yet not called marriage) and that considering it to be genuine equal treatment is questionable. Plus, quiyte frankly, I was cutting pretty close to the deadline for submitting it. Anyway, here it is.
In Hyde v Hyde & Woodmansee, Lord Penzance stated 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.” Since 1866, this definition has underpinned the common law’s conceptualisation of marriage. In fact, the Marriage Amendment Act 2004 (Cth) instituted a statutory definition of marriage that is close to a verbatim reproduction of Lord Penzance’s definition. However, both within and beyond Australia there have been significant recent developments in the conceptualisation of marriage. This essay will argue that Lord Penzance’s definition is inconsistent with contemporary societal attitudes and legal reasoning about marriage.
The purpose of defining marriage
The definition of marriage is central to the functioning of family law. Traditional conceptions of family have included marriage at its foundation, and consequently family law has afforded the institution of marriage “a central position, with the state giving it full protection.” The centrality of marriage in family law has remained constant over a period of centuries, despite historical developments in its nature from being an economically-oriented arrangement to one based on a concept of mutual affection. Consequently, the legal definition of marriage potentially determines the rights and obligations of people in relation to property, children, etc.
Lord Penzance set out four essential criteria that define a marriage: (i) volition, (ii) permanence, (iii) heterosexuality, and (iv) monogamy. A fundamental observation about his definition is that it is based on form rather than function. That is, Lord Penzance’s definition sets out the conditions that people must meet in order to be legally married, rather than defining marriage in terms of the purpose that the relationship serves. A marriage based on mutual affection and one based on socioeconomic advantage could be equally consistent with his definition. Thus, Lord Penzance’s definition could come to be regarded as out of date for either of two different reasons: (i) society’s views about the form that a marriage should take have changed, or (ii) society’s views have changed such that it is considered more appropriate to define marriage in terms of its function rather than its form.
Permanence and volition: Changes in form
It is not surprising that there have been considerable changes in the nature of society and people’s attitudes during the 142 years since Lord Penzance stated his definition of marriage. Some of these changes are reflected in the changing form of marriage. For instance, it can be argued that the ideal of marriage as a permanent institution is viewed more realistically in modern times. Although the dissolution of marriage through nullity or divorce has been possible throughout history, the development of law in this area demonstrates an increasing recognition that while marriages might be entered into with the intention of permanence, the decision to end a marriage is relatively common. This is reflected in the change from relatively narrow fault requirements that were burdensome to establish in earlier divorce law to the current provision of the Family Law Act 1975 (Cth), in which the sole grounds for divorce is irretrievable breakdown as evidenced by one year of separation. These provisions were introduced because of growing public sentiment that divorce should be possible without requiring misconduct on the part of one or both parties to the marriage, and highlight that the intention for marriage to be permanent is now viewed as an aspiration rather than a binding commitment.
In contrast to the gradual shift in relation to permanence, the notion that marriage should be entered into voluntarily remains strongly held. The Marriage Act 1961 (Cth) provides that a marriage shall be void if either of the parties has not legitimately consented to the marriage, e.g., through duress, fraud, mistake as to identity or the nature of the ceremony, or mental incapacity. Although the courts have adjusted the threshold requirements of these specific barriers to consent, the fundamental premise that a marriage must be voluntarily entered into remains unchallenged.
The requirement of heterosexuality: Based on function or discrimination?
Whereas the first two elements of Lord Penzance’s definition have seen little more than a shift in the degree to which they are held, the requirement that marriage be between a man and a woman has seen intense debate in recent years, and there have been radical departures from the traditional definition in some common law jurisdictions. The arguments relating to same-sex marriage and the implications for the common law definition of marriage are central to evaluating whether Lord Penzance’s definition should be considered out of date.
The recent decisions in favour of permitting same-sex marriage have typically upheld arguments relating to equality and discrimination. For instance, in Halpern v Canada the Ontario Court of Appeal ruled that preventing same-sex couples from marrying violated s 15(1) of the Canadian Charter of Rights and Freedoms, which holds that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination …”. Similarly, in Goodridge v Department of Public Health the Massachusetts Supreme Judicial Court held that same-sex couples could not be denied marriage because to do so would violate that State’s Constitutional provision of equality before the law. The decisions of these courts was based on the reasoning that the capacity to marry was a fundamental right and that the state could not restrict parties from exercising that right based on sexual orientation. In doing so, the courts adopted a perspective toward defining marriage that focussed on its functions and on the benefits and obligations associated with it. For instance, in Goodridge v Department of Public Health Marshall J noted that “For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In turn it imposes weighty legal, financial, and social obligations.” Similarly, in Halpern v Canada the court noted that “The societal significance of marriage, and the corresponding benefits that are available to married persons, cannot be overlooked … Exclusion perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships.” Thus, the courts recognised that marriage serves a number of functions, including the expression of commitment, securing of legal and financial protections, etc., and their decisions reflected a view that same-sex couples were equally entitled to exercise those functions within the protection of the law.
On the other hand, the arguments against same-sex marriage in the international cases incorporated arguments based on both form and function in marriage. In relation to form, a common argument against same-sex marriage is that marriage has a traditional and unalterable definition as a heterosexual union. However, in Halpern v Canada the court rejected the notion that the definition of “marriage” was fixed in the literal form that it had taken when the Constitution was adopted. Thus, an argument that the form of marriage specified by Lord Penzance must be retained on purely historical grounds was rejected by the court.
In addition to the purely formalistic argument, the Attorney-General of Canada asserted that marriage had functions that could not be exercised by same-sex couples, thus justifying the exclusion of same-sex couples from marriage. In particular, the Attorney-General argued that marriage unites the opposite sexes, encourages the raising of children, and promotes companionship. The court rejected the arguments on the ground that union and companionship could apply equally to same-sex couples and to exclude them implies that same-sex relationships are worth less than opposite-sex relationships, and that same-sex couples can both have and raise children. Consequently, the court concluded that there was no functional grounds on which same-sex couples should be denied access to the rights and obligations associated with marriage.
Defining marriage within the Australian Constitution
Given that some jurisdictions which had recognised the historical common law definition of Lord Penzance have now broadened their definition of marriage to incorporate same-sex relationships, the potential implications for marriage in Australia must be considered. A fundamental consideration is whether same-sex marriages could be accommodated within the Australian Constitution. Consistent with the Canadian court’s reasoning in Halpern, Meagher argues that “marriage” as used in s 51(xxi) of the Constitution should be understood as a ‘legal term of art’, the meaning of which will change as the law develops alongside society’s views. Similarly, McHugh J argued against interpreting marriage based on its literal meaning in 1901, stating that, “arguably ‘marriage’ now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.” Consequently, it appears that same-sex marriage legislation is permissible under the Australian Constitution.
A consideration at the opposite extreme is the possibility that Lord Penzance’s definition, and that of the Marriage Act 1961 (Cth), are not valid under the Australian Constitution. However, a key distinction between Australia and the jurisdictions in which courts have ruled in favour of same-sex marriage is that Australia does not have an extensive set of rights enshrined in its Constitution. Thus, it could be argued that the equal protection grounds on which Halpern and Goodridge were based do not apply in Australia in the absence of a Charter or Bill of Rights. On the other hand, Cooper suggests that an argument could be made that Australian law is underpinned by a principle of equality before the law, which derives from both the general notion of the rule of law as well as our specific international and local legal commitments toward human rights and against discrimination. The implication of such an argument would be that the Marriage Act 1961 (Cth) in its current form infringes the rights of same-sex couples because it does not treat them equally to opposite-sex couples in denying them the capacity to marry. However, in the absence of relevant case law it is difficult to anticipate whether such an argument would be successful.
What is modern marriage in Australia?
Notwithstanding the absence of a clear constitutional imperative for same-sex marriage, it is important to examine the extent to which the traditional definition is inconsistent with modern societal attitudes and lifestyles. Australia, along with other common law jurisdictions, has seen a transformation in attitudes toward marriage and its functions. Courts and scholars have recognised that the traditional concept of marriage has become decoupled from functions such as sharing living arrangements as well as procreation and child-rearing, so that these functions increasingly occur outside the legal definition of marriage. The concepts of family and partnership have broadened to incorporate both same- and opposite-sex cohabitation. At the same time, most jurisdictions around Australia have introduced or extended legislation to protect against discrimination, protect rights to property, inheritance, and other benefits in de facto relationships, etc., thus increasing the inclusiveness and equality of Australia’s legal system for all intimate relationships.
However, the reliance on Lord Penzance’s definition of marriage in Commonwealth legislation presents an ongoing obstacle to ensuring that all Australian family relationships receive full and equal access to the protections of the law. For instance, matters relating to ex-nuptial children were brought under the Family Law Act 1975 (Cth) when the States referred these powers to the Commonwealth in the 1980s, however property adjustment and maintenance matters for de facto relationships remain under State and Territory law. Consequently, same-sex couples and opposite-sex de facto couples are not afforded the same legal rights and obligations as those who meet Lord Penzance’s definition of a marriage. Furthermore, the narrow and formalistic definition of marriage has created additional complexity in dealing with marriages involving transsexual and intersexual individuals.
Thus, it can be argued that holding to Lord Penzance’s definition of marriage conflicts with the contemporary ideals of equality and anti-discrimination for Australian society. However, the previous Commonwealth Government enshrined this definition in legislation, largely on the same grounds that marriage is a traditionally and fundamentally heterosexual institution that have been rejected in other jurisdictions. In other words, the legal definition of marriage has been constrained from adapting to society’s needs in order to maintain consistency with an archaic ideal. Consequently, the law is incomplete and inconsistent in regulating the functions and nature of modern relationships.
If the definition of marriage espoused by Lord Penzance is out of date, then what is the remedy? As in jurisdictions such as Canada, one approach is to alter the legal definition of marriage such that it includes all relationships that can serve the functions of a marriage, regardless of form. An alternative approach would be to maintain the current definition of marriage while creating a framework for providing equivalent legal rights and obligations as those provided by marriage to relationships of other forms. For instance, the Civil Partnership Act 2004 (UK) allows same-sex couples to register partnerships that receive the same protections and procedures as heterosexual marriages. Such an approach can be regarded as a compromise inasmuch as it provides equivalent legal provisions without directly altering the traditional concept of marriage.
Conclusion: The future of marriage
As societal attitudes and practices in terms of relationships develop, so must legal definitions. The narrow, formalistic definition of marriage espoused in previous centuries is not able to encompass the breadth of circumstances that modern relationships require. A focus instead on the functions of marriage, such that all individuals who have the capacity to fulfil those functions can also have the capacity to marry, is ideal.
Such evaluation and adaptation is an ongoing process. For instance, the final element of Lord Penzance’s definition relates to monogamy. Although some common law jurisdictions have considered extending the legal recognition of relationships to include partnerships of more than two people, the evidence and arguments relating to this element of marriage are less well-developed. Bala and Bromwich raise concerns that polygamous relationships may not meet the functional requirements of monogamous marriages, citing concerns about exploitation, gender imbalance, etc. Thus, the functional analysis approach can be applied to all elements of the definition of marriage. At the same time, some formalistic elements must always remain in the definition of marriage. Regarding the concerns about polygamy, it seems likely that exploitation and power imbalances occur in some monogamous marriages and it is possible that non-exploitative polygamous arrangements may occur; however, because of a general trend that makes such problems more likely in one type of marriage, a formalistic constraint on marriage is likely to be maintained.
As noted earlier, the notion of marriage has been the classical centre of our societal concept of family and it has underpinned the family law. In order to maintain societal and legal coherence, the definition of marriage must reflect the relationships we form. Lord Penzance’s definition no longer fulfils this role, in either its specific details or its general approach.
 LR 1 P&D 130 at 133.
 G Monahan & L Young, Family Law in Australia (6th ed, 2006), LexisNexis Butterworths, p. 1.
 Ibid, p. 97.
 e.g., the Matrimonial Causes Act 1959 (Cth).
 K Enderby, ‘The Family Law Act: Background to the Legislation’, 1975, 1 UNSW Law Journal 10.
 s 23B (1) (d).
 for instance, compare Szechter v Szechter  P 286 and S and S (1980) 5 Fam LR 831.
 (2003) CanLII 26403.
 (2003) 440 Mass. 309.
 (2003) CanLII 26403 at .
 Ibid at .
 Ibid at .
 D Meagher, ‘The times are they a-changing’? – Can the Commonwealth parliament legislate for same sex marriages?’, 2003, 17 Australian Journal of Family Law 134.
 Re Wakim  HCA 27 at .
 s 5(1), introduced by the Marriage Amendment Act 2004 (Cth).
 D Cooper, ‘For richer, for poorer, in sickness and in health: Should Australia embrace same-sex marriage?’, 2005, 19 Australian Journal of Family Law 153.
 e.g., Halpern v Canada (2003) CanLII 26403.
 e.g., A Barlow & G James, ‘Regulating marriage and cohabitation in 21st century Britain’, 2004, 67 The Modern Law Review 143.
 e.g., Commonwealth Powers (Family Law – Children) Act 1986 (NSW).
 although several jurisdictions have recently referred these powers to the Commonwealth, e.g., Commonwealth Powers (De Facto Relationships) Act 2003 (NSW).
 e.g., In Re Kevin  FamCA 1074.
 Commonwealth Attorney-General, Second Reading Speech of the Marriage Legislation Amendment Bill, 27 May 2004.
 D Cooper, ‘For richer, for poorer, in sickness and in health: Should Australia embrace same-sex marriage?’, 2005, 19 Australian Journal of Family Law 153.
 N Bala & RJ Bromwich, ‘Context and inclusivity in Canada’s evolving definition of the family’, 2002, 16 International Journal of Law, Policy and the Family 145.