Does the community have an interest in whether a marriage should be preserved or dissolved and, if so, why?

GCSE Religious Studies (Philosophy & Ethics)

Family Law

1LAW600

“ Dissolution of marriage ought always to require a real exercise of judgement by the court, acting on the community’s behalf”.

[Putting Asunder: The report of a group appointed by the Archbishop of Canterbury in January 1964, paragraph 48]

Does the community have an interest in whether a marriage should be preserved or dissolved and, if so, why? Should the dissolution of a marriage be a private matter for the parties concerned? Why should the court be required to exercise judgement in such matters?

In regards to the communities interest the above statement was made in 1964, the perception and interest of marriage the communities had then, is rather different to today’s day and ages. It has been accepted in the English law that marriage is a union between man and women. This view is very much an ancient yet significant view although it may well be said, in accordance with recent case law that is been tipped away. Lord Penzance in Hyde v Hyde (1866) stated “ I conceive that marriage, as understood in Christendom…be defined as the voluntary union for life of man and one woman to the exclusion of all others”

This statement can be can be criticised on the basis that It only defines marriage in relation to Christianity and that its use in contemporary society may well be discriminatory as it lacks the capacity to provide for the great increase in religion and cultural diversity.

In today’s day and age in society, marriage is a concept that has evolved and further need for clarity is needed, and when we discuss community, it needs to be established what and which communities interest is to be preserved. Section 11(C) of the MCA 1973 provides that both parties to a marriage must be respectively male and female, without which the marriage would be void.

In the recent case of Goodwin (2002), the P had obtained a sex change from male to female due to her lack of recognition. As a female, which ‘she’ believed caused her to be discriminated against, ‘she’ was refused the opportunity to portray herself as a female on her birth certificate. She claimed this was a breach of Article 8: Right to respect of ones private life. Since she was denied the right to marry a male person, she also contended that Article 12 was breached. The domestic court stated that a

(i) Fair balance had to be struck between the right of the individual and the interests of the community

(ii) There did exist situations where a person would face restriction as to the disclosure of their sex change and

(iii) That such situations were necessary and unavoidable,

This case was taken to the European Court of Human Rights were it was held that Article 8 provides a right for individual to portray themselves and their own identity, as they are and it had been breached. The domestic Courts provided no evidence to show that P’s conveyance of ‘his’ sex change would be detrimental to society. Also since she was denied ‘the right to marry’ (Article 12) a person of her opposite sex, so article 12 had been breached in the process of denying such a right.

Thus we see that the point in Goodman of sex change should be recognised in law. Many would argue that allowing transsexuals the right to marry would harm common moral values within society but it is also significant to appreciate the continual change in society. In my opinion the courts should ‘exercise judgment in such matters’ as the evolution of society is based on the communities interest, as it may be beneficial to individuals in such situations such as transsexual and heterosexuals, etc. Thus we see that the provisions of s11(C) MCA 1973 and the statement in Hyde v Hyde have been developed further in order to adequate today’s generation of communities interest as seen by the landmark decision in Goodwin.

In order to address this question further, it needs to be discussed how the present legislation accommodate dissolution of marriage, and what satisfactory provisions are maintained, and whether those provision effects the community, and it also needs to be stated why it is necessary to exercise a great deal of judgement in this particular sensitive issue, as the outcomes may be severe for all parties concerned.

A marriage may end in divorce if one of the parties successfully presents a petition alleging that the marriage has irretrievably broken down (s 1(1) MCA, and proves this by establishing one of the five facts in s 1(2) MCA 1973. Very few petitions are contested (less than 1%), and the vast majority of divorces are granted by way of the special procedure whereby the petition is read and approved without oral hearing. However, for many couples, divorce is a bitter process, and does not end their problems, but merely leads to further dispute and antagonism. It is therefore necessary to examine the current divorce procedures and see how far, if at all, they serve the parties and the community’s interests.

Historically, marriage has been regarded as an institution that should be firmly supported and not undermined by the state. However, increasing numbers have found their marriages intolerable and have sought an end to their marital obligations. Initially, it was only possible to divorce a partner who could be shown to be at fault. This inevitably leads to bitter accusations about past indiscretions and conduct and is hardly conducive to civilised conduct after the divorce. This bitterness can have repercussions on the welfare of any children as well as the parties’ willingness to co-operate in other matters, such as financial ...