A recent article in the Sydney Morning Herald canvassed the idea of giving marriage contracts a review clause.
Given the alarming, yet maybe not surprising, statistics related to the prevalence of marriage breakdown in Australia – a trend that has been in the making since the enactment of the Family Law Act 1975 – the topic should not come as a surprise.
In the Judeo-Christian view, marriage is a ‘sacrament’ or spiritual mystery where the two parties become ‘one’. In my opinion, the problem with the ‘modern day’ definition of marriage, and the legal treatment of it, is that it is, in effect, a contract between Mr X and Ms Y who:
– consider the proposition of getting married (have a meeting of the minds),
– offer each other what they will get in return such as love, support and commitment (consideration)
– one of them proposes to get married (offer),
– the other agrees to get married (acceptance),
– they then engage in a ceremony for the purposes of formally recognizing their marriage and having a marriage certificate issued to them (reducing their agreement to writing).
But that is where the conflict lies and will always lie – in taking something well defined and wanting to change its definition.
There have never been calls to change the definition of divorce, but unfortunately, marriage does not escape so easily.
Notwithstanding the modern day definition, the Judeo-Christian or orthodox (with a little ‘o’ – pardon the pun) tradition still forms the basis of marriage in Australia. It was enshrined in a seminal English case way back in 1866, Hyde v Hyde and Woodmansee. In that case, Lord Penzance defined marriage on the following premises:
- “The voluntary union
- for life
- of one man and one woman
- to the exclusion of all others.”
Some, such as the immediate former Chief Justice of the Family Court of Australia, Alastair Nicholson, have advocated that Lord Penzance’s definition is antiquated and does not fit in with modern day values (http://www.theage.com.au/articles/2004/09/19/1095532174080.html).
My view is that instead of seeking to adapt the definition of marriage to appease modern day values for those who wish to tweak the institution to suit their own personal preferences and attitudes, why is it so unpalatable to respect the history and origins of the institution that has served so many generations so well to date? In other words, why are some not prepared to recognise the inviolability of the definition of ‘marriage’ in the same way they do other legal definitions, such as ‘contract’, ‘trespass’ and even ‘murder’?
Marriage just can’t seem to catch a break.
We have some in Australian society who believe that arranged marriages are acceptable (challenging premise 1); some who propose marriage should have a ten year review clause (challenging premise 2); some who advocate same-sex marriage (challenging premise 3); and some who support polygamy (challenging premise 4).
In my respectful opinion, if a person does not like the definition of marriage, and does not wish to conform to the history, logistics and intentions behind it, that person should not get married.