Child and Family Law

Hyde v Hyde 1866[1]defined the term marriage as: “The voluntary union of one man and one woman at the exclusion of all others for life”. This definition is built of the back of a very morally religious country, and in fact prior to the definition it uses the words “in christendom”[2]. The basis of this concept can be traced right back to the creation of religion with the creation of Adam and Eve as Husband and Wife in the bible[3]. This position has stood the test of time and is still to some extent true in today’s society. However the Legislature and Judiciary have over the last forty to fifty years appeared to severely weaken the position and in some instances have gone as far as saying Hyde[4] is no longer relevant[5].

The definition can be broken down into four area of which I discuss below .Each section has seen some change to it and questions the 1866 definition, however it should be noted that parliament and the courts have not overruled the definition but have distinguished many cases and brought in supplementary legislation such as the Gender Recognition Act 2004 (GRA04).

The biggest flaw in the definition is likely to be considered as the “for life”, as when the definition was made divorce was available through the matrimonial causes act 1857 (MCA 57). This however had a very strict approach which only really gave men the right to petition for divorce, but only on the grounds of adultery, whereas woman could petition but would have to prove adultery then one of the following: incest, bigamy, cruelty, two years desertion or alternatively rape. Woman came on a level with men through the MCA 1937. Over the last forty years the divorce laws have been developed significantly. This started with the Divorce Reform Act 1969 which abolished all grounds for divorce. The MCA 73 then outlined the breakdown of the new rule for divorce which was that the marriage had irretrievably broken down, it endorsed the five facts in s1(2) MCA 73 which had been set out out...