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Lord Penzance's description of marriage in Hyde v Hyde and Woodmansee has often been cited as the legal definition of marriage, and has been relied on to deny marital status to a number of unions, most recently in Wilkinson v Kitzinger. Yet his words were shaped by their historical context and were not immediately regarded as defining marriage. Nor have they been taken literally in all contexts: when considering the availability of divorce, the courts have not insisted that a marriage be ‘for life', nor has recognition been denied to ‘non-Christian' marriages. This article argues that Lord Penzance's description should be understood as a defence, rather than as a definition, of marriage, and that modern judges are not constrained by it, and should not continue to invoke it.
Covers the law, practice and procedure in respect of FGM and also includes wider contextual...