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New Zealand Law Students' Journal |
Last Updated: 24 September 2015
FOR BETTER OR WORSE - THE CHANGING LEGAL AND SOCIAL PURPOSE
OF MARRIAGE
ELIZABETH SOMERFIELD
Introduction
One hundred and fifty years ago, marriage was defined by Lord Penzance in
Hyde v Hyde as “the voluntary union for life of one man and one
woman to the exclusion of all
others”.[1] The prevalence of
divorce means that marriage is no longer necessarily for
life.[2] It is also not confined to
heterosexuals.[3] The institution of
marriage is becoming legally redundant in New Zealand, as traditional notions of
marriage no longer reflect contemporary
social mores. Considering this issue (in
greater detail) is important, as the institution of marriage has shaped society
for centuries.[4] Part I of this
paper will canvas the history of marriage, while part II will cover the
legalisation of same-sex marriage, and part
III will consider the modern purpose
of marriage. Part IV will discuss the situation in other jurisdictions, while
part V turns to
potential future developments.
Many people argued against
the recent change to allow same-sex couples to marry, based on the belief that
the definition of marriage
necessarily requires a heterosexual
couple.[5] They strive “to show
that defining marriage to include only different-sex couples is justified
morally, to preserve family
values and traditional ethical
notions.”[6] The legal
definition of marriage can both reflect changes in thinking in society, and lead
to further such changes.[7] This
change in the law reflects a modern understanding of the family: what are most
important nowadays are the intentions of the
parties.[8] The juxtaposition between
the argument that heterosexual marriage is morally justified and a more modern
approach to family indicates
why it is having marriage as a legal institution
itself that is the problem, as it can be used to support both
arguments.
In terms of gaining an understanding of the nature of
marriage, the grounds for voiding a marriage in s 31 of the Family Proceedings
Act 1980 may provide insight. Under s 31(1)(a), a marriage under New Zealand
law is said to be void ab initio only where one party was already
married, there was a lack of proper consent, or the parties are within the
prohibited degrees of
relationship. These factors speak nothing of gender, the
need to procreate within marriage, or the requirements of a person who
becomes
married. This indicates that aside from incest, mental incapacity and bigamy,
there are very few restrictions, reflecting
the idea of individual choice that
our society currently embraces. The requirement of consent and mental capacity
indicates that
the Hyde v Hyde reference to a ‘voluntary
union’ is still very much relevant to the nature of marriage. Similarly,
as the marriage of
a person who is already married is void ab initio, it
is clear that ‘all others’ are still excluded from the union of
marriage. There is no reference here to the parties
needing to intend to remain
together for life, however.
As Angela Burgess
notes:[9]
...it is important to understand the place of marriage in the law because the law plays a large role in defining the nature, purpose and consequences of marriage and can determine whether marriage is encouraged or discouraged in a society.
In this day and age the general population is much more aware of how the
law affects their lives, meaning that family law must somehow
find enough
fluidity to suit a variety of
lifestyles.[10]
I
History
Marriage is thought in some disciplines to stem
from primeval habit, sanctioned by custom and later by law, transforming it into
a
social institution.[11]
Alternatively, it has been suggested that marriage became universally accepted
with the emergence of people from the tribal
state.[12] Most scholars agree that
there has been some form of marriage in virtually every culture throughout
history.[13] The history of marriage
that has most influenced New Zealand’s marriage law, the English civil
law, was explained in Adams v
Howerton.[14] The court said
that English law took its principles from the canon law, originally administered
by the ecclesiastical
courts:[15]
...canon law in both Judaism and Christianity could not possibly sanction any marriage between persons of the same sex because of the vehement condemnation in the scriptures of both religions of all homosexual relationships.
Until the Council of Trent in 1545-1563, the canon law was heavily
influenced by Roman civil law concerning
marriage.[16] This meant that all
that was needed to constitute a marriage was the consent of both parties to
enter a permanent and lawful
union.[17] The next significant
adaptation to marriage came with the Clandestine Marriages Act 1753, which
“fundamentally altered the
meaning of marriage for the participants,
transforming marriage from a private and meaningful rite to a bureaucratic
transaction”.[18] This was
because a Church of England ceremony was required, meaning marriage was not only
a civil commitment through contract, but
was embedded with Christian concepts of
unity.[19] It thus became the
preferred form of union.[20]
Despite this, civil marriage was introduced into England in the Marriage and
Registration Acts Amendment Act 1856, which was followed
shortly by the infamous
words of Lord Penzance. It is argued that this definition has had such a legal
influence because the Christian
concept of marriage described was an ideal that
was already coming under
threat.[21]
In terms of
same-sex relationships, early Egyptian and Mesopotamian societies apparently
tolerated same-sex relationships, and recognised
them indirectly in literature
and mythology.[22] Evidence of such
relationships is stronger in early Greek and Roman societies, where same-sex
relationships were sometimes treated
similarly to heterosexual
marriages.[23] In Greece, same-sex
relationships were even institutionalised to a certain extent, as it was
expected that males would have a relationship
with a boy in their early
adulthood, which was the ‘functional equivalent’ of a legalised
marriage.[24] This indicates that
the hysteria that has surrounded homosexuality in the West is a relatively
modern phenomenon.
A. The Original Purpose of Marriage
The
accepted function of family law has been to encourage marriage as the union in
which to raise children.[25] Over
the past 50 years, it has come to be recognised that procreation is not a
requirement of marriage, though this position was
initially not easily
accepted.[26] Marriage was
previously rationalised by the need to protect women and children as the
‘vulnerable’ members of
society.[27] This rationale meant
that it became impossible to think of ‘marriage’ between
homosexuals, because there was no conceivable
way for them to ‘propagate
the race’.[28] However, in
addition to procreation, marriage has fulfilled a variety of purposes over time
(including division of labour, kinship
ties and coalitions, and emotional
support), and procreation has also occurred outside marriage throughout
history.[29] This indicates that it
is not just modern society which has not strictly accorded to this notion of
marriage.
In 1850, the duties associated with marriage appeared to exist
largely to protect the institution of marriage itself and the morals
of society,
rather than the individuals involved in the union. A husband had a duty to
maintain his wife, they had a duty to live
together, and sexual intercourse was
a duty.[30] Each party also had a
duty not to have sexual relations outside the
marriage.[31] After marriage, a
woman lost her identity in that she could not own property, enter into
contracts, or sue or be sued; this indicates
that marriage was about more than
simply regulation of sexual
relations.[32] There were also more
consequences for a woman who committed adultery, on the rationale that if she
had children that were not her
husband’s, they may inherit his property
wrongfully.[33] The stark contrasts
to the twenty-first century notions of individual choice are captured in Matthew
Bacon’s Abridgement, which states
that:[34]
...marriage is a compact between a man and a woman for the procreation and education of children; and it seems to have been instituted as necessary to the very being of society; for, without the distinction of families, there can be no encouragement to industry, or any foundation for the care of acquiring riches.
II
The Road to Same-sex Marriage
Marriage
in traditional Maori culture was concerned with strengthening family and tribal
links. Partners were preferably from within
the iwi or hapu, and marriages were
frequently arranged from a young
age.[35] There was no formal
ceremony; simple approval from the family was required. Marriage was not
intended as a mechanism for regulating
sexual relationships, and most people had
one or more sexual relationships before
marrying.[36] All official
recognition of traditional Maori marriage ended in the 1950s with the Maori
Purposes Act, which required European customs
to be followed in order for
children to be considered
legitimate.[37] However, Maori
traditional marriage appears to relate more easily to today’s society than
traditional Western marriage does.
In accordance with the intolerant views on homosexuality that dominated
Western culture for hundreds of years, were frequently very
severe criminal
punishments. Cretney explains
that:[38]
Sending men to prison for having sex with one another was in fact, by the
standards of earlier times, comparatively lenient: from
the 16th Century until
the Offences against the Person Act in 1861 death was the penalty for certain
kinds of homosexual conduct.
Until the Homosexual Law Reform Act
1986,[39] provisions in the Crimes
Act 1961 of New Zealand continued to criminalise consensual sexual relations
between adult men. The 1986
Act was the result of years of politics, including
petitions by prominent citizens, and an original bill being
defeated.[40] The bill passed only
narrowly (49-44 votes), but nonetheless began to change views on
homosexuality.[41]
B. Case Law
The
key case on marriage and homosexuality in New Zealand is Quilter v Attorney
General.[42] Here, three
lesbian couples sought marriage licenses, but were denied by the
Registrar-General under s 24 of the Marriage Act 1955.
In the Court of Appeal
(by a majority), it was decided that keeping marriage for heterosexuals
only/alone was a reasonable limit
on the New Zealand Bill of Rights Act 1990
right to be free from discrimination, that /and could be justified in a free and
democratic
society.[43] While the
result here was not ultimately successful, the rhetoric used by the court did
indicate that New Zealand was on the cusp
of change; the court simply saw it as
the proper role of Parliament to address
this.[44] A second case of
importance in terms of society’s changing conceptions is Re Application
by AMM and KJO to Adopt a Child, where it was decided that the term
‘spouses’ in the Adoption Act 1955 can refer to a de facto
couple.[45]
The introduction of Civil Union legislation in New Zealand was not
without controversy; people on both sides of the discussion had
issues with this
development:[46]
Either it is marriage in disguise - gay marriage, that is - and this attacks the very foundations of our morals and civil society. Or else, it is wrong simply because it is not marriage and therefore does not go far enough.
On top of this, many in the family law sphere saw the introduction of
civil unions as simply another layer of paper
work.[47] However, this development
was significant as it was the first in New Zealand to recognise same-sex
relationships themselves, rather
than just the consequences of
them.[48] Unfortunately, the bill
was “woefully misunderstood and, indeed, excessively maligned as being
dishonest and as an
abomination”.[49] The
parliamentary debates surrounding this issue highlight the huge differences in
opinion on the matter, and also that people on
both sides held similar views on
New Zealanders as citizens who valued long-term, committed
relationships.[50]
Submissions
in favour of the bill focused on the fact that it would be a step towards
equality, would provide greater stability for
children of same-sex couples, and
would show that the government is not imposing religious ideals on secular
society.[51] Submissions against
the bill largely came from a religious minority, who argued it would lead to
bigamy, incest, polygamy, paedophilia,
bestiality, pose a threat to the
institution of marriage, God’s law and the
nation.[52] Polls at the time
generally suggested that the population was supportive of the establishment of
civil unions, but would be less
supportive of same-sex
marriage.[53]
In
introducing the bill, David Benson-Pope recognised that “[t]his is a Bill
appropriate to the times, which recognises the
reality of relationships instead
of attempting to deny their
existence”.[54] Despite this,
much of the discussion in the house centred on providing an alternative way for
heterosexual couples to have their
relationship
recognised.[55] Recognising the
necessity of this arguably posed more of a challenge to the institution than
recognising same-sex relationships,
as it identified that marriage was no longer
the ‘preferred’ form of union for everybody. The bill was passed on
its
third reading by 65 votes to 55, and there was little discussion of the
issue in society for several years following this.
D. Definition of Marriage Amendment Bill 2012
In 2013, discussions of same-sex marriage were difficult to avoid in New
Zealand, both in society and in politics, with 21,533 submissions
on the
Definition of Marriage Amendment Bill being received by the Government
Administration Committee.[56] The
definition of marriage provided for in s 2 of the Marriage Act 1955 now reads,
“marriage means the union of 2 people,
regardless of their sex, sexual
orientation, or gender identity”. The bill allows celebrants to refuse to
solemnise marriages
that would conflict with their
beliefs,[57] based on the
justification that the “Marriage Act enables people to become legally
married; it does not ascribe moral or religious
values to
marriage”.[58] Opponents of
the bill argued that the rights of same-sex couples had already been provided
for with the civil union
legislation,[59] and allowing this
change would lead to further ‘undesirable’ changes to society.
The bill also changed New Zealand adoption laws: previously, single
homosexual people could adopt a child, but a homosexual couple
could not. Now a
married couple is able to adopt no matter their sexual
orientation.[60] According to
Statistics New Zealand, since this amendment came into effect on August
19th 2013, there have been 117 same-sex marriages (compared to 23
civil unions of same-sex couples for the same
quarter).[61]
The
parliamentary debates, particularly the speeches heard during the third reading,
shed some light on both the changing nature of
marriage, and its significance to
society. Louisa Wall MP, who introduced the bill, said; “[i]n our society
the meaning of
marriage is universal. It is a declaration of love and
commitment to a special
person”.[62] It is
questionable whether this meaning is as universal as Wall suggests, however,
legally this is now the case (although the meaning
of specific religious or
cultural marriages will still vary). Maurice Williamson MP’s speech had
the general theme that, “[t]he
world will just carry on. So do not make
this into a big deal. This bill is fantastic for the people it affects, but for
the rest
of us, life will go
on”.[63] However, not all MPs
were of this persuasion, with one even voting against the bill as he believed a
debate needed to first be had
about what marriage is and what it
means.[64]
E. What has the role of the state been in these developments?
In an area of public
policy such as family law, the extent to which the state should intervene is
always a relevant question, and
was considered seriously in the passing of the
recent amendment bill:[65]
We are aware that some people consider that the religious and cultural meanings of marriage should take precedence over the regulatory role of the state, while others consider that New Zealand’s laws should be driven by universal human rights considerations, not by particular religious perspectives.
Because of the amount of support for the recent amendment and the
submissions made in its favour, it seems clear that a majority of
the population
agree with the conception of marriage in the
Act.[66] If the law fails to keep
pace with reality in areas so heavily concerned with public policy, then it
becomes ineffective.[67] Thomas
Stoddard theorised that for legal changes to be effective, a cultural shift or
change in social norms is necessary, and the
law in question must affect a wide
range of people.[68] The recent
changes indicate that “[s]ocial change pulls the law and the law drags
society”; it is a two-way
relationship.[69]
Lord
Millett’s dissenting judgment in Ghaidan v
Mendoza[70] highlights some of
the issues of a legal attempt to confine marriage to a union that does not
reflect its purpose to
society:[71]
Marriage is the lawful union of a man and a woman. It is a legal relationship between persons of the opposite sex. A man's spouse must be a woman; a woman's spouse must be a man. This is the very essence of the relationship, which need not be loving, sexual, stable, faithful, long-lasting, or contented.
The implication that the only requirement for a marriage is that the two
persons are of opposite sex is the type of view that will
lead to the rapid
decline of the institution.
III.
The Modern Purpose of Marriage.
In considering the modern purpose of marriage, it may help to compare the
arguments for and against same-sex marriage. Proponents
of same-sex marriage
argue it is a basic human right for which there should be no unjustified
discrimination, and is required by
the value of
tolerance.[72] As there is evidence
that homosexuality is biologically
determined,[73] many compare this
situation to allowing an interracial couple to marry. Marriage is said to add
to the stability of individual
unions,[74] and therefore expanding
the class of persons who are eligible to marry would increase the overall social
good. The definition of
marriage has changed across time and culture, and this
is simply one more example of this process.
Those that argue against
same-sex marriage turn to definitional arguments: if marriage is simply about a
relationship between two
consenting heterosexual adults, then it does not breach
the human rights of others not to offer this union to them; the claim to
same-sex marriage is not a claim to equality, rather, it is a claim to
preference, as marriage has always been the preferred form
of
union.[75] Sexuality is seen as
fundamentally related to marriage, procreation and protection of the structure
of society. Similarly, heterosexual
marriage promotes equality by recognising
the contribution of both a man and a woman to the union, as well as promoting
social stability
and inter-jurisdictional
comity.[76]
Religious
arguments against same-sex marriage are also prevalent because for many people
“marriage is a covenant between one
man, one woman, and God, for the
purpose of procreation”.[77]
However, while Lord Penzance’s definition of marriage was initially a
description of ‘marriage as understood in Christendom’,
this element
of the Western conception of marriage has been abandoned legally in favour of
the secular state and civil
marriage.[78] While religion
continues to influence many people in terms of their opinions on whether and how
the institution of marriage should
develop, the secularity of the New Zealand
state in the 21st Century cannot be denied. In the 2013 census, four
out of ten New Zealanders identified themselves as non-religious, while fewer
than 1.9 million people now identify with a Christian
religion.[79]
If the purpose
of marriage is said to be responsible procreation, then it is unclear how
allowing same-sex couples to marry will harm
this, as same-sex couples being
allowed to marry has no rational connection to whether a heterosexual couple
will choose to get married
and have
children.[80] Even if this were not
true, it cannot be said at this moment in time that marriage is particularly
successful in achieving the goal
of responsible procreation. Considering the
number of marriages that end in divorce, coupled with the number of children
born to
parents who are not married, it seems that procreation cannot be the
only purpose of marriage. Maggie Gallagher makes the argument
that not only
does marriage serve to discourage people from doing things they should not (such
as sexual intercourse outside marriage),
but being raised in this institution is
better for a child and means the child itself is more likely to create healthy,
long-lasting
relationships.[81]
However, research indicates that children who are parented by same-sex couples
are just as happy and psychologically well-adjusted
as those raised by
heterosexual couples.[82] The
expectation in society that a person was to marry, and then start a family,
simply does not exist anymore. The decline in religious
belief in the
population, coupled with easy access to contraception, and a society focused
ever more on individual choice have altered
this.[83]
If marriage is not
for procreation, perhaps there is an economic purpose to it? However,
traditional economic benefits of marriage
have largely been removed in New
Zealand. The 2003 amendments to the Property (Relationships) Act (PRA) 1976
extended the statutory
relationship property regime to those who were in
‘de facto’ relationships, granting the majority of rights that
married
couples enjoy to those who choose not to
marry.[84] This occurred without
much public dissent, and has been said to reflect the New Zealand emphasis on
pragmatism and tolerance.[85] A
couple who live together as spouses/partners for a long period of time are
effectively deemed to be married in the eyes of the
law, unless they choose to
opt out of this at their own
expense.[86] Subjecting human
relationships to legal rules and consequences was previously something that was
reserved only to marriage, and
these benefits have not been removed completely
because it is assumed that marriage continues to have socially desirable
consequences.[87] However, civil
unions can be said to effectively have the same consequences as marriage,
without the traditional and religious components
of marriage. Does this not
indicate that marriage is therefore no longer the only ‘preferred’
union?
If there is very little economic reason to marry, it appears the
last remaining alternative may be that marriage has psychological
and emotional
benefits. Maggie Gallagher questioned the difference between cohabiting couples
and married couples and decided, based
on research in the social sciences, that
couples in a cohabiting relationship are actually more similar to single people
than married
couples in terms of physical and mental health, emotional
well-being and financial security, largely because the idea of cohabitation
attracts partners who are less committed to the
relationship.[88] It is possible
that these effects on couples that cohabitate rather than marry in New Zealand
are less pronounced, due to the fact
that being a de facto couple in New Zealand
does involve an amount of legal responsibility. However, if it is the case that
marriage
is used to make love and a relationship more ‘concrete’,
then there is surely no reason that it should be confined to
heterosexuals.
The psychological needs of the general population, including gay and
lesbian people are very well recognised by society
nowadays,[89] which has undoubtedly
contributed to the gradual recognition of the rights of homosexual people.
During the third reading of the
B/bill, Jami-Lee Ross MP said, “[n]obody
gets hurt when gay couples say they are married, but gay couples who do want to
get
married are harmed when they are arbitrarily stopped by the State from doing
so and from expressing their love in the way that they
want
to”.[90] Rational arguments
against this point do not appear to exist, but this does mean that marriage
becomes simply a legal recognition
of a loving, committed relationship. This is
the same as a civil union. This is the same as a de facto relationship.
Society has
moved so far past the traditionally assumed purposes of marriage, so
that marriage has become legally meaningless, despite retaining
psychological
and emotional benefits for some members of society.
According to statistics New Zealand, an average of 77/seventy-seven
heterosexual couples per year have chosen to enter a civil union
rather than
marry, out of a total average of 386 civil unions per year since
2005.[91] Over this time, the
number of weddings (heterosexual) per year has decreased, from 23,444 in 2005 to
22,943 in 2012.[92] This could be
related to the prevalence of divorce; people may perceive that divorce is so
prevalent that it no longer makes sense
to get married at all. This couples
with the modern emphasis on freedom of choice, and the decline of religion to
mean that marriage
is now less important to heterosexual couples, particularly
as there is legally no advantage to getting married. Even when a couple
does
choose to marry, it is likely that they have lived together in a de facto
setting prior to this.[93] This
means that de facto relationships generally last for a shorter amount of time
than marriages, and also that the divorce rate
is lower because many couples
never end up getting
married.[94]
A ‘de
facto relationship’ is defined in s 2D(2) of the Property (Relationships)
Act 1976, by a list of factors to be taken
into account. This list is not
exhaustive, and not all factors must be present. However, “[w]hat is
clear is that a de facto
relationship...involves more than merely living
together or having a sexual
relationship”.[95] According
to Boyd v Jackson, it must be committed and permanent, so the couple
share a life together.[96] Unlike a
marriage, the commitment need not be intended to last forever, merely for the
foreseeable future.[97] Still, in
O'Connell v Muharemi, Heath J equated the term ‘de facto
relationship’ with ‘relationship in the nature of a
marriage’.[98] Such
relationships could potentially fit all elements of Lord Penzance’s
definition of marriage, without actually being a
registered marriage, giving
another reason to believe that the Hyde definition is not relevant to
modern society. De facto relationships and homosexuality have become so accepted
within society that
“[t]oday, even the Governor-General receives
invitations addressed; ‘and
Partner’.”[99]
This
is a stark contrast to the 1950s, when such variation was unheard of, and the
thing for a college educated woman to do was aim
to be married within weeks of
graduation.[100] It is hard to
fathom that more than 90%/ninety percent of the women in every birth cohort on
record (dating back to the 1800s) have
eventually been
married.[101] The popularity of
such relationships has likely also been strengthened by the Status of Children
Act 1969, reflecting international
conventions that make it illegal to
distinguish between children born in and out of
wedlock,[102] therefore giving
couples less to fear about having children while they are unmarried.
Similarly, governments over the past few decades, have gradually removed
many of the aspects of marriage that have traditionally distinguished
it from
other types of unions. This all means that the only distinctive aspect of
marriage is that the choice is made to register
the relationship as a marriage,
perhaps granting the couple more psychological security. Maggie Gallagher makes
the argument that
there is a social difference between committing adultery and
‘cheating on a
girlfriend’;[103] however,
to the present generation, it seems this argument does not stack up because the
rules of each relationship, de facto or
married, are deemed to be governed by
the parties to the relationship. Rebecca Probert argues that this is a key
reason why Lord
Penzance’s definition needs to stop being used as a legal
definition, as it actually provides no mechanism for distinguishing
between
married and cohabiting
couples.[104]
This
discussion has highlighted the fact that marriage is no longer as vital to
society as it has been previously. In fact, marriage
as a legal institution has
relatively little purpose at all in the twenty-first century in New Zealand.
IV.
Other Jurisdictions
The
institution of marriage has shared historical roots across many jurisdictions,
but this does not mean generalisations can be made
about the role of marriage in
the twenty-first century. This is because, as stated by
Auchmuty:[105]
...one of the problems with the globalisation of the same-sex marriage movement is that we commonly find arguments from one jurisdiction employed in the service of another, with little consideration for the different social and legal context.
This section will consider the United Kingdom, the United States and
Australia in terms of current law and attitudes to marriage.
A. The United Kingdom
New Zealand’s
social and legal traditions were shared with the United Kingdom up until
relatively recently. Any divergence
between the two jurisdictions is thus a
result of diverging modern societies and values. The United Kingdom Civil
Partnerships Act
(CPA) 2004 granted all the substantive rights of marriage to
same-sex couples, meaning that all that had to be campaigned for afterwards
was
the name, ‘marriage’. There are two differences between marriage
and a civil partnership: the religious sanction
of marriage, and the
‘requirement’ of monogamy (adultery is not a ground for the
dissolution of a civil
partnership).[106] Legislation
was passed in July 2013 that will allow couples of the same gender to marry from
the middle of 2014 in England and
Wales,[107] and similar
legislation has also been introduced into Scottish
parliament.[108] Northern Ireland
has indicated that it does not intend to follow
suit.[109] However, the path to
this development was not particularly smooth; a few cases shall be discussed
here, to lay out some of the issues
with marriage in modern English
society.
1. Ghaidan v Mendoza
The majority in Ghaidan v Mendoza held that same-sex relationships may
be
‘marriage-like’.[110]
As explained by Bill Atkin:[111]
...to be marriage-like, a relationship must surely possess the core characteristics of marriage, bar formal registration. It follows that, if a same sex relationship can be marriage-like, then heterosexuality cannot be a foundation stone of marriage.
In the case, Lord Nicholls
stated:[112]
...one looks in vain to find justification for the difference in treatment of homosexual and heterosexual couples. Such a difference in treatment can be justified only if it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Here, the difference in treatment falls at the first hurdle: the absence of a legitimate aim.
Baroness Hale also stated:
[113]
a homosexual couple whose relationship is marriage-like in the same ways that an unmarried heterosexual couple's relationship is marriage-like are indeed in an analogous situation. Any difference in treatment is based upon their sexual orientation.
She believed that in the past it had been difficult to imagine the idea
of same-sex marriage, because the gender roles associated
with marriage were so
firmly entrenched.[114] However,
this is no longer the case, with the roles of each party to the marriage being
seen as more of a matter of individual choice.
She also believed that
prohibiting same-sex couples from marrying was not likely to encourage
heterosexual couples to marry at
all.[115] These statements appear
to parallel developments in New Zealand reasonably accurately.
2. Wilkinson v Kitzinger
Wilkinson v Kitzinger involved two women who had been married in
British Columbia in 2003, [116]
and then returned to England and sought either legal recognition of their
marriage,[117] or a declaration
that s 11(c) of the Matrimonial Causes Act 1973 and Chapter 2 of the CPA were
incompatible with the obligations
imposed by Articles 8, 12 and 14 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950.[118] Wilkinson and
Kitzinger effectively wanted to be able to marry, but bring the definition of
marriage in to line with that of a civil
partnership.[119] It was accepted
by Potter P in the Family Court that the facts of the case could fall under the
right to marry in Article 12: the
two women were being treated differently
because of their sexual orientations, and this amounted to
discrimination.[120] However, he
believed that this discrimination had a legitimate aim; to preserve the
heterosexual union of marriage, and that the
discrimination had been addressed
by the Government of the United Kingdom by enacting the
CPA.[121] Thus the petition was
dismissed.
In
terms of insight this judgment can provide into the significance of marriage,
take, for example, paragraph
118:[122]
It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or “nuclear family”) in which both maternal and paternal influences are available in respect of their nurture and upbringing.
This ignores the fact that even at that time an increasing number of
European governments were opening up marriage to same-sex couples.
Further to
this, Rosemary Auchmuty recognises that “it is true that marriage is an
‘age-old institution' but this does
not mean it has always taken the form
it takes in Britain
today”.[123] She extends
this to say that if marriage exists to encourage monogamy, then its success rate
is poor.[124] Same-sex couples
were already permitted by law to adopt children at this time in England, so if
marriage is the best environment
for raising children, then it would be logical
for this institution to also be available to same-sex
couples.[125] The questions about
the purpose and significance of marriage that arise from the facts of this case
highlight the divided opinions
that exist: both Potter P and the claimants
argued that marriage involves a certain status and
privilege.[126] This is simply
not the case. This leads to the conclusion that marriage is also far less
significant in English society than it
has been in the past.
B. The United States
In the United States, same-sex marriage is now
legal in 14/fourteen states; however, under the Defence of Marriage Act (DOMA)
1996
other states need not recognise such
marriages.[127] DOMA was enacted
in 1996 partly in response to developments in Hawaii, debating the right to
same-sex marriage.[128] Section 3
of DOMA had prevented the federal government from recognising same-sex marriages
as well, but this was held to be unconstitutional
on June 26th 2013
in United States v
Windsor.[129] Despite this
development, vocal opponents to same-sex marriage continue to push to amend the
United States Constitution to define
marriage as between a man and a
woman,[130] and 29 states have
enacted legislation or amended their constitutions over the past twenty years,
to define marriage as between a
man and a woman. Because of these prominent and
controversial laws, there have been many attempts by both sides to the argument
to
have various laws declared
unconstitutional.[131] Such cases
indicate that the institution of marriage does not currently appear to fully
meet the needs of many sections of American
society.
The Supreme Court
inferred the right to marry from the Due Process Clause in Loving v
Virginia,[132] and this
has been a key argument of gay rights movements ever
since.[133] Dunson explains
that:[134]
The right to marry is classified as a fundamental right for constitutional purposes because the legal recognition and protections afforded by marriage are deemed to be essential to the exercise of heterosexuals' right to pursue happiness.
However, this did not stop the court from dismissing a case requesting
same-sex marriage rights a mere five years
later.[135] It was only in 2003
that laws prohibiting sodomy were declared unconstitutional in Lawrence v
Texas.[136] While this cannot
be said to condone same-sex relationships, it does imply that such relationships
are of no concern to other
people.[137] This fits with the
general societal attitude within the United States, which has seen a majority
come to support the legalisation
of same-sex marriage in recent
years.[138] Like most other
jurisdictions, the concern in the United States is not so much about extending
the rights associated with marriage
to same-sex couples, but extending the use
of the word
itself.[139]
Courts across
the United States have variously recognised the importance to the individual of
having their relationship officially
recognised.[140] The Supreme Court
of California described marriage in In re Marriage Cases as requiring a
‘legal commitment to long-term mutual economic and emotional support as
part of a loving relationship that might
be crucial to individual
development’.[141] This
description is clever; it references neither gender nor procreation, and focuses
on the substance of the relationship at stake,
which clearly both those of the
same-sex and of different sexes may engage
in.[142] However, it also
attempts to make marriage appear to be ‘crucial’ to an
individual’s personal growth and development,
which statistics in the
United States contradict. One study suggests that only 11% of women aged 20-24
in the United States now marry
without ever having lived with their partner,
while 32% of women the same age are cohabiting with their
partner.[143]
In 1999 the
Supreme Court of Vermont[144]
unanimously held that the state constitution's Common Benefits Clause requires
the state to extend to same-sex couples the benefits
and protections of
marriage, although left the method of implementation to the
legislature.[145] Civil union
legislation was enacted in 2000, granting same-sex civil union partners all of
the same rights as married
couples.[146] A similar result
occurred in New Jersey resulting from the case of Lewis v
Harris.[147] These successful
results appear to stem from the fact that the court left the legislature options
in how to implement equal rights.
This can be seen in contrast with other
states such as Alaska, where the courts declared in 1998 that only same-sex
marriage would
satisfy the
constitution,[148] leading the
legislature to promptly amend the
constitution.[149] This is
because systems such as civil union legislation have been compared to the
‘separate but equal’ doctrine of racial
segregation; however, the
two are very different, separation along race lines had no rational connection
to any of the facilities
that were separated out, while most people agree that
sex is rationally connected to the institution of marriage (for example,
fidelity
is expected).[150] This
indicates that the judicial approach may be counterproductive overall, “if
one views the cause in a wider geographical
context and seeks to shorten the
timeline for achieving existentially authentic social
acceptance.”[151]
While
there are many people and state governments across America that would protest
against the proposition that the traditional legal
conception of marriage is
becoming less and less relevant to a large proportion of American society, it
appears that on balance this
is in fact the case. Developments may not have
been as swift and accepted as they have been in New Zealand, but the institution
of marriage in most states in America is currently not meeting all the demands
of the various sections of society.
C. Australia
On first glance, it appears that Australia is
relatively ‘behind the times’ as against New Zealand. This is
because in
2004 the Australian Marriage Act 1961 was amended to define
marriage as a union between a man and a woman and say that any existing same-sex
marriage from a foreign country
is not to be recognised as a marriage in
Australia.[152]
In most states, the couple will simply be recognised as a de facto couple unless
there is recognition of ‘civil union’
type relationships in that
state.[153] This legislation was
passed rapidly through parliament in apparent response to a gradual judicial
inclination to recognise new forms
of families. However, Australian marriage
law is not as ‘traditional’ as it appears; for example, transgender
marriages
are allowed, as a post-operative female is considered a male for the
purposes of marriage (and vice
versa).[154] Foreign polygamous
marriages are also recognised to a certain extent (although a person may not
marry polygamously within
Australia).[155]
It
appears that the legal difference between marriage laws in Australia and New
Zealand reflects nothing more than a cautious approach
by the Australian
Government, and the politics involved in changing the law. This can be seen in
the fact that a majority of Australians
support the legalisation of same-sex
marriage,[156] despite the fact
that the Australian parliament rejected a bill to do so in
2012.[157] This indicates that
the New Zealand Government has been quite progressive and interventionist
compared to our closest neighbour.
This is not the first occasion in Australia
that has seen huge amounts of uncertainty about the future of the family; at the
start
of the 1900s there was huge concern about the declining birth
rate.[158] Birth control was seen
as a threat to the family, and it was seen as ‘unnatural’ to have
any less than an unlimited
number of
children.[159]
Australian
Capital Territory recently passed state legislation legalising same-sex
marriage, despite the federal law stating that
marriage is between a man and a
woman.[160] This legislation was
therefore challenged judicially and declared
invalid,[161] but does indicate
the need for change. In terms of other changes to the purpose of marriage, rates
of couples choosing to remain
de facto in Australia are also increasing,
although distinctly lower than in New Zealand. One poll from 2012 suggests that
22% of
those aged 20-29 live in a de facto relationship, a statistic which has
more than doubled since 1992.[162]
Despite the politics surrounding this issue presently, it seems inevitable that
change will eventually be accepted by the Australian
Government, as the
population clearly desires it.
V.
The Future
It
seems that in the near future, policy makers and society are going to need to
decide; is the institution of marriage valued enough
to be maintained despite no
longer having any real purpose, or will it be abandoned as a legal institution?
If it is to be maintained,
it will undoubtedly continue to change. Possible
changes are highlighted below.
A Lack of Love
Because of no-fault divorce, a lack of love may be a reason to dissolve a
union presently. However, could it ever become a ground
for a marriage being
void ab initio? It is easy to say from a social perspective that love
and commitment are the basis of marriage, but translating this legally is
virtually impossible. It also raises questions of why the state is getting
involved in relations of such an intimate nature. Just
as in the past a
marriage did not “cease to be a marriage in the eyes of the law if the
parties [failed] to match up to the
standards set out in
Hyde”,[163] it would
be impossible to set a standard of love that the parties had to live up to. If
love and consent really are the only requirements
for marriage, it would
probably legally be easier if people did not marry at all. Maggie Gallagher
agrees:[164]
If marriage is just another word for an intimate union, then the state has no legitimate reason to insist that it even be intimate, unless the couple, or the quartet, want it so. For the individual to be truly free to make unconstrained relationship choices, marriage itself must be deconstructed.
While it seems that such a ground for voiding a marriage ab initio
is a logical extension of the argument that marriage is a union based on love,
practically and legally this development seems implausible.
B. Polygamy
New Zealand currently recognises foreign polygamous marriages for some
purposes,[165] although any
attempt to take another spouse within New Zealand is considered
bigamy.[166] To many this law
must seem strange, given that polygamy is practiced in 850 societies around the
world.[167] Immediately after the
Definition of Marriage Amendment Bill 2012 was passed in April 2013, there were
calls that recognition of polygamous relationships would be the next
step.[168] Theoretically, if
love, consent and commitment are now the only requirements for a marriage, then
why is this situation any different?
In Cameroon, both polygamous and
monogamous marriages are recognised; Nganjie J defined marriage in Motanga v
Motanga as “the union between a man and one or more women to the
exclusion of other
men.”[169] While
technically a couple must be either polygamously or monogamously married, bigamy
is practiced widely in monogamous
marriages.[170] Even in the
United States, polygyny has been acknowledged as a basic form of marriage that
has been more common than any other form
throughout history. Justice Murphy (in
dissent) said:[171]
...we must recognise then, that polygyny, like other forms of marriage, is basically a cultural institution rooted deeply in the religious beliefs and social mores of those societies in which it appears.
One key difference to same-sex marriages could be that homosexuality is
genetically influenced, while polygamy is a lifestyle choice.
Still, what
difference should this make? If marriage is all about individual choice, and a
polygamous group marrying is not going
to harm society, then what is the
difference? It could be argued that marriage is intended to provide some
stability for children,
however, polygamous groups may raise children even if
they are not legally married. A report from the Supreme Court of British
Columbia
in 2011 seemed to establish that, from a Western point of view, there
are still many issues with children being raised in polygamous
families that
make the union ‘harmful to
society’.[172]
It
seems unlikely that marriage will be extended to include polygamous
relationships, but there is no denying that this is a possibility:
it took only
27 years between homosexual relations being decriminalised in New Zealand and
the legalisation of same-sex marriage.
At present, it is possible to be in two
recognised de facto relationships simultaneously, although there have been no
cases on this
as yet.[173]
However, it is not socially accepted that polygamous families exist in New
Zealand in the same way that same-sex couples do; the
tradition remains largely
external to mainstream society. This may be subject to change, given the
increasing number of cultures
that are represented in New Zealand.
C. Marriage becomes redundant
Rosemary Auchmuty proposes
that:[174]
...the irony is that marriage is in long-term decline across the western world. It is entirely possible that it is only by opening it to same-sex couples like Wilkinson and Kitzinger that it will survive another generation or two.
It seems that the institution of marriage has lost so much of its
essence, that it is likely that it will eventually become redundant.
Legally,
the arguments in favour of this stack up; de facto and civil union couples now
receive all the same rights and benefits
as married couples, which means that
the only purpose that marriage retains links to some vague notion that it is
traditional and
therefore worth pursuing.
There have been arguments made
that while same-sex marriage was a goal for those affected, their true goal was
the removal of marriage
as a legal
class.[175] For some people, only
the removal of marriage from the law will mean the true removal of gender bias
and the true separation of
religion and the state in family
law.[176] This is not to say that
marriage will not retain religious and social importance to some segments of
society, but legally, it has
become irrelevant. The repeal of marriage laws
would also lead to the simplification of dissolution laws, laws of succession
and
family protection, and even evidence in criminal proceedings, which could
all simply refer to ‘domestic partnerships’;
“[t]he social
fabric of our legal system would be thus immeasurably simplified and
strengthened.”[177]
VI.
Conclusion
The institution of marriage in New Zealand is
legally less unique, and socially less important than it has ever been before in
history.
The redundancy of marriage as a legal institution is becoming ever
more foreseeable, although cultural and religious marriages are
likely to remain
significant to segments of society. The traditional Hyde v Hyde
formulation of marriage that has informed our conceptions of marriage for the
past 150 years is no longer legally relevant, or a
good reflection of what
marriage means to society. What we are left with is a voluntary union of two
people based on love, which
is of the exact same legal and social status as de
facto relationships and civil unions, with no legal benefits maintaining it as
the preferred form of union in society. For better or worse, the legal
institution of marriage is becoming superfluous to modern
New Zealand.
[1] Hyde v Hyde (1866) LR 1 P&D 130.
[2] In 2012 in New Zealand, the divorce rate was 10.1: “Marriages, Civil Unions, and Divorces: Year ended December 2012” (2013) Statistics New Zealand.
[3] At the time of writing, 15 nations, as well as states within the United States and Mexico, legally recognise same-sex marriage. In New Zealand, the Definition of Marriage Amendment Bill came into effect on August 19th 2013.
[4] James Henslin (ed) Marriage and Family in a Changing Society (3rd ed, The Free Press, New York, 1999) at 16.
[5] William Eskridge, “A History of Same Sex Marriage” (1993) 1 Yale Law School Faculty Scholarship Series 1419, at 1427.
[6] Ibid.
[7] Kathleen Mahonney, “Gender Bias in Family Law” 2 New Zealand Family Law Journal 24, at 26.
[8] William Pinsof (ed.) “Marriage in the 20th Century in Western Civilisation: Trends, Research, Therapy, and Perspectives” (2002) 41(2) Family Process at 152.
[9] Angela Burgess, The Erosion of Marriage: The Effect of Law on New Zealand’s Foundational Institution (Maxim Institute, Auckland, 2002) at 7.
[10] Bill Atkin, “Family Law getting Fatter” (2003) 4(8) New Zealand Family Law Journal 181, at 181.
[11] Edward Westermarck, A Short History of Human Marriage (Cornwall Press, USA, 1926) at 2-3.
[12] R H Gavision and F R Crane (eds) A Century of Family Law: 1857-1957 (Sweet & Maxwell Ltd, London, 1957) at 20.
[13] Westermarck, above n11, at 9.
[14] Adams v Howerton (1982) 458 US 1111.
[15] Ibid.
[16] The Council of Trent was a Council of the Catholic Church that was influential in defining and creating religious traditions.
[17] Gavison , above n12, at 25-26.
[18] Rebecca Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (Cambridge University Press, United Kingdom, 2009) at 3.
[19] See discussion in Lindo v Belisario (1795) 1 Hag.Cons. 216 at 230-231.
[20] Burgess, above n9, at 11.
[21] Probert, above n18, at 323.
[22] Eskridge, above n5, at 1437.
[23] At 1437, 1441.
[24] At 1444.
[25] Burgess, above n9, at 5.
[26] Baxter v Baxter [1948] AC 274. The Court of Appeal had initially refused to acknowledge this.
[27] Nancy Cott, Public Vows: A History of Marriage and the Nation (Harvard University Press, USA, 2000) at 61.
[28] Adams v Howerton above n15.
[29] Gavin Thompson, Oliver Hawkins, Aliyah Dar, Mark Taylor, (House of Commons Library, London, 2012) Olympic Britain: Social and Economic Changes in Britain since the 1908 and 1948 London Games.
[30] Burgess, above n9, at 14
[31] At 14-15.
[32] At 15.
[33] At 16.
[34] Matthew Bacon, A New Abridgement of the Law (5th ed, Luke White, Dublin, 1832), at 346.
[35] Megan Cook, “Marriage and partnering: Marriage in traditional Māori society” (13.07.2012) Te Ara: the Encyclopaedia of New Zealand, at 1.
[36] Ibid.
[37] Maori Purposes Act 1951, section 8(1).
[38] Stephen Cretney, Same Sex Relationships: From Odious Crime to ‘Gay Marriage’ (Oxford University Press, United Kingdom, 2006) at 2.
[39] See section 5 (now repealed).
[40] National MP, Venn Young’s Crimes Amendment Bill 1974.
[41] Cretney, above n38, at 3.
[42] Quilter v Attorney General [1997] NZCA 412; [1998] 1 NZLR 523.
[43] Section 5 of the New Zealand Bill of Rights Act 1990.
[44] Quilter v AG, above n42, at para 2.
[45] Re Application by AMM and KJO to Adopt a Child [2010] NZHC 977; [2010] NZFLR 629 (BC201062869) (HC).
[46] Bill Atkin, “Editorial: When is Enough Enough?” (2004) 4(12) New Zealand Family Law Journal 283, at 239.
[47] Ibid.
[48] Ibid.
[49] P Webb “The Civil Union Bill: Why all the Fuss?” (2004) 4 New Zealand Family Law Journal 11 at 11.
[50] Civil Union Bill (2004): Third Reading (9 December 2004) 622 NZPD 17638.
[51] Nan Seuffert, “Sexual Citizenship and the Civil Union Act 2004” (2006) 37 Victoria University of Wellington Law Review 281, at 287.
[52] Ibid.
[53] "Civil Union Bill: What the Readers Say" (5 October 2004) New Zealand Herald (Online Edition).
[54] David BensonPope MP, Civil Union Bill (2004): First Reading (24 June 2004) 618 NZPD 13927.
[55] See Chris Carter MP, Civil Union Bill (2004): Third Reading (9 December 2004) 622 NZPD 17638.
[56] Marriage (Definition of Marriage) Amendment Bill 2012 (Government Administration Committee Commentary), at 2.
[57] Section 29 Marriage Act 1955.
[58] Above n56, at 3.
[59] Ibid.
[60] Amendments to other pieces of legislation are listed in Schedule 2, Part 1 of the Marriage (Definition of Marriage) Act 2012.
[61] “Marriages, Civil Unions, and Divorces: Year ended December 2012” (Statistics New Zealand, 2013).
[62] Louisa Wall MP, Marriage (Definition of Marriage) Amendment Bill (2012): Third Reading (17 April 2013) 689 NZPD 9482.
[63] Maurice Williamson MP, Marriage (Definition of Marriage) Amendment Bill (2012): Third Reading (17 April 2013) 689 NZPD 9482.
[64] Chester Burrows MP, Marriage (Definition of Marriage) Amendment Bill (2012): Third Reading (17 April 2013) 689 NZPD 9482.
[65] Above n56, at 3-4.
[66] At 2. This shows 10,487 submissions in favour of same-sex marriage.
[67] Adiva Sifris, “The Legal Recognition of Lesbian-led Families: Justifications for Change” (2009) 21(2) Child and Family Law Quarterly 197 at 90.
[68] Thomas Stoddard, “Bleeding Heart: Reflections on Using the Law to Make Social Change” (1997) 72 New York University Law Review 967 at 977.
[69] Sifris, above n67, at 99.
[70] Ghaidan v Mendoza [2004] UKHL 30; [2004] 3 All ER 411.
[71] At para 78.
[72] This argument is considered legitimate by a variety of actors, such as the Australian Human Rights Commission; Marriage Equality in a Changing World (Australian Human Rights Commission, 2012).
[73] Simon LeVay and Dean Hamer, “Evidence for a Biological Influence in Male Homosexuality” (1994) Scientific American 43.
[74] Although approximately one third of couples married in 1986 were divorced before their 25 year anniversary: “Marriages, Civil Unions, and Divorces: Year ended December 2012” (Statistics New Zealand, 2013).
[75] Bill Atkin, “Harmonising Family Law” (2006) 37 NZLJ 356, at 356.
[76] Elizabeth Scott, “Social Norms and the Legal Regulation of Marriage” (2000) 86(8) Virginia Law Review 1901, at 1923.
[77] Above n56, at 3.
[78] Probert, above n18, at 322.
[79] Census 2013, (Statistics New Zealand, 2013).
[80] Janan Hanna “The two sides of the marriage debate” (2012) Student Lawyer 29.
[81] Maggie Gallagher, “What is Marriage For? The Public Purposes of Marriage Law” (2002) 62 Louisiana Law Review 773, at 788.
[82] See C.J. Patterson, “Families of the Lesbian Baby Boom: Parents’ Division of Labour and Children’s Adjustment” (1995) 31 Developmental Psychology 115.
[83] Ibid.
[84] Part 2, Section 1M.
[85] Simon Jefferson, “De Facto or ‘Friends with Benefits’?” (2007) 5(12) New Zealand Family Law Journal 304 at 304.
[86] Property (Relationships) Act 1976, section 2D.
[87] John Caldwell, “The High Court Declaration on Transsexual Marriages” (1995) 1(9) New Zealand Family Law Journal 204 at 206.
[88] Gallagher, above n81, at 777.
[89] Mental Health support within New Zealand society has become much more extensive, including initiatives such as the New Zealand Mental Health Survey: MA Oakley Browne, JE Wells, KM Scott (eds) Te Rau Hinengaro: The New Zealand Mental Health Survey (Ministry of Health, 2006).
[90] Jami-Lee Ross MP, Marriage (Definition of Marriage) Amendment Bill (2012): Third Reading (17 April 2013) 689 NZPD 9482.
[91] (2013) “Marriages, Civil Unions, and Divorces: Year ended December 2012”, Statistics New Zealand.
[92] Ibid.
[93] About half of all cohabiting couples either marry or separate within one and a half years: Andrew Cherlin, Marriage, Divorce, Remarriage (Harvard University Press, United Kingdom, 1992) at 14.
[94] Rosemary Auchmuty, “What’s so Special About Marriage – The Impact of Wilkinson v Kitzinger” (2008) 20 Child and Family Law Quarterly 475 at 487.
[95] Boyd v Jackson (Family Court, Napier FP041/363/01, 6 March 2003, Judge Inglis).
[96] Jefferson, above n87, at 305.
[97] Thompson v Department of Social Welfare [1993] NZHC 2044; [1994] 2 NZLR 369.
[98] O’Connell v Muharemi unreported High Court Auckland, CP546-SDO1, 24 October 2003.
[99] Paul Treadwell, “Inequality and Discrimination in the Division of Property” (1998) 2 New Zealand Family Law Journal 10, at 10.
[100] Andrew Cherlin, Marriage, Divorce, Remarriage (Harvard University Press, United Kingdom, 1992) at 8.
[101] At 10.
[102] See Article 10, International Covenant on Economic, Social and Cultural Rights.
[103] Gallagher, above n81, at 789.
[104] Probert , above n18, at 322.
[105] Auchmuty, above n94, at 488.
[106] A civil partnership must be dissolved on the grounds of ‘unreasonable behaviour’ rather than adultery.
[107] Marriage (Same-sex Couples) Bill 2013.
[108] Marriage and Civil Partnership (Scotland) Bill 2013.
[109] A bill was voted down in April 2013 in Northern Ireland.
[110] Ghaidan v Mendoza, above n74. Lord Millet dissented.
[111] Bill Atkin, “Editorial: When is Enough Enough?” (2004) 4(12) New Zealand Family Law Journal 283 at 238.
[112] Ghaidan v Mendoza, above n74, at para 18.
[113] At para 143.
[114] At para 80.
[115] At para 143.
[116] Wilkinson v Kitzinger [2007] 1 FLR 296.
[117] Section 215 of the CPA states that a relationship registered abroad which meets the requirements of a civil partnership under English law will be treated in England as a civil partnership.
[118] These Articles contain: the right to respect for private and family life (Article 8), the right to marry (Article 12), and the prohibition on discrimination (Article 14).
[119] Auchmuty, above n94, at 485.
[120] Wilkinson v Kitzinger, above n116, at para 89.
[121] At para 122.
[122] At para 118.
[123] Auchmuty, above n94, at 480.
[124] At 480.
[125] At 481.
[126] Wilkinison v Kitzinger, above n116, at para 119.
[127] Section 2 DOMA states that no state shall be required to give effect to legislation of other states that treats the relationship between persons of the same-sex as one of marriage.
[128] See Baehr v Miike (1996) 910 P 2d 112, (Haw).
[129] United States v Windsor (2013) 570 US 12-307.
[130] The Federal Marriage Amendment 2004 (or Marriage Protection Amendment) was last voted on in Congress in 2006, failing by 236 votes to 187.
[131] Approximately 20 cases on the issue are presently on the table.
[132] Loving v. Virginia [1967] USSC 168; (1967) 388 US 1. The Due Process Clause is contained in the 5th and 14th Amendments to the United States Constitution.
[133] Eskridge, above n5, at 1424.
[134] Daniel Dunson, “The Right to a Word? The Interplay of Equal protection and Freedom of Thought in the Move to Gender-Blind Marriage” (2012) 5(2) Albany Government Law Review 522, at 556.
[135] Richard John Baker v. Gerald R. Nelson (1972) 409 US 810.
[136] Lawrence v Texas [2003] USSC 4776; (2003) 539 US 558.
[137] Dunson, above n134, at 564.
[138] Lydia Saad, “In U.S. 52% Back Law to Legalize Gay Marriage in 50 States” (29.07.2013) Gallup Politics.
[139] Dunson, above n134, at 555.
[140] In re Marriage Cases (2008) 183 P 3d 384, 424 (Cal).
[141] Ibid.
[142] Dunson, above n134, at 557.
[143] Ezra Klein “Nine Facts About Marriage and Childbirth in the United States” (25.03.2013) The Washington Post (Online Edition).
[144] Baker v State (1999) 744 A2d 864, 882, 886 (VT).
[145] The Vermont Constitution 1777, chapter 1, article 7.
[146] Act 91: An Act Relating to Civil Unions 2000.
[147] Lewis v Harris (2006) 908 A 2d 196, 224 (NJ). This led to An Act Concerning Marriage and Civil Unions, 2006 N.J. Laws 975 (codified in part at N.J. Stat. Ann. §§ 37:1-28 to 37:1-36 (West 2008 & Supp. 2011))
[148] Brause v Bureau of Vital Statistics (1998) WL 88743 (AK).
[149] Ballot Measure 2 of 1998 amended the Constitution at Article 1, section 25 to state that “To be valid or recognized in this State, a marriage may exist only between one man and one woman”.
[150] Dunson, above n134, at 577-578.
[151] At 611.
[152] Amended by the Marriage Amendment Act 2004, which changed section
[153] South Australia recognises Domestic Partnership Agreements, while Victoria, Queensland and New South Wales have legislated for Civil Partnerships.
[154] AG v Kevin [2003] FamCA 94; (2003) 30 Fam LR.1.
[155] Ng Ping On v Ng Choy Fung Kam [1963] SR NSW 782, 792.
[156] Fact Sheet: Marriage Equality and Public Opinion (ND) Australian Marriage Equality.
[157] The Marriage Equality Amendment Bill 2012 was rejected by 98 votes to 42 by the House of Representatives.
[158] Michael Gilding, ‘Changing Families in Australia (2001) Family Matters 60, at 8.
[159] Ibid.
[160] Marriage Equality (Same Sex) Act 2013.
[161] The Commonwealth of Australia v The Australian Capital Territory [2013] HCATrans 299 C13/2013.
[162] Australian Social Trends, March Quarter 2012 (Australian Bureau of Statistics, 04.04.2012).
[163] At 322.
[164] Gallagher, above n81, at 779.
[165] Section 2 Family Proceedings Act 1980.
[166] Bigamy is illegal under sections 205 and 206 of the New Zealand Crimes Act 1961.
[167] S Elbedour, A J Onwueqbuzie, C Caridine and H Abu-Saad, “The effect of polygamous marital structure on behavioural, emotional, and academic adjustment in children: a comprehensive review of the literature” (2002) 5 Clinical Child Family Psychology Review 4, at 255.
[168] “Former Dutch MP Admits Polygamy, Group Marriage Next” (15.03.2013) Family First New Zealand.
[169] Motanga v Motanga Unreported No. HBC/2/76.
[170] Danpullo Rabiatu Ibrahim, “Marriage in Cameroon: the gap between law on the books and social reality” (2001) 3 New Zealand Family Law Journal 12, at 313.
[171] Dissenting judgment of Justice Murphy in Cleveland v United States [1946] USSC 136; (1946) 329 US 14, 19 at 329.
[172] Re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588 at para 6.
[173] Property (Relationships) Act 1976, s 52B(2).
[174] Auchmuty, above n94, at 497.
[175] Auchmuty, above n94, at 490-493.
[176] Mahonney, above n7, at 25.
[177] Paul Treadwell, “Inequality and Discrimination in the Division of Property” (1998) 2 New Zealand Family Law Journal 10, at 11.
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