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Family Law

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24 APR 2007

<i>Hyde v Hyde</i>: defining or defending marriage?

Rebecca Probert, University of Warwick. Why should a dictum articulated by a Victorian judge capture the legal imagination for 140 years? Lord Penzance's statement in Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 that 'Marriage as understood in Christendom, may be defined as the voluntary union for life of one man and one woman to the exclusion of all others' has become the accepted definition of marriage in this country, and the latter part forms the introduction to the civil marriage ceremony in England. But is it an accurate definition of marriage, or is it rather a defence of a traditional Christian model of marriage, which has been invoked whenever that model is under threat?

In this article the author looks at the social and historical background to the Hyde dictum and tracks its appearance in later cases where different external factors presented a threat to the Christian British way of life. The dictum has rather neatly kept Mormon marriages, and indeed any marriage which was deemed unacceptable according to the standards of the day, outside of the jurisdiction of the English court, appearing most recently in resistance to challenges by same-sex couples that they should not be excluded from the institution of marriage in Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), [2007] 1 FLR 295. The article goes on to consider the future of the Hyde dictum and whether it might yet be replaced by a more accurate definition of marriage for the twenty-first century. For the full article see Child and Family Law Quarterly, Vol 19, No 2, 2007.

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