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19 SEP 2011

Hyde v Hyde: defining or defending marriage? [2007] CFLQ 322

Rebecca Probert


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.

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