BEcons(Hons)Mal,LLB(Hons)Lond,LLM(UKM),CLP
Advocate & Solicitor
HIGH COURT OF MALAYA
1. INTRODUCTION
1.1 The waning significance of marriage
Marriage which was once an institution ordained and blessed by our value systems and religions has today been relegated to very low esteem. The enchantment of marriage, the associated thrill , anticipation and scintillating anxiety are today fast disappearing. Marriage was the carte blanche for sex but on the converse sex is the prelude to marriage today. Thus, marriage has become the brunt of coffee-shop jokes and the subject has its own satirical brand of quotable quotes such as :
The difficulty with marriage is that we fall in love with a personality but must live with a character - (Peter De Vire)
Marriage is the alliance of two people, one who never remembers birthdays and the other who never forgets them - (Ogden Nash)
Marriage is like a phone call in the night : first the ring then you wake up - (Evelyn Hendrickson).
Marriage is one subject on which all women agree and all man disagree. - (Oscar Wilde)
The quotation in the question is as regards a case in 1866 decided before Lord Penzance. It revolved primarily around the issue of dissolution of marriage on the grounds of adultery by the respondent (wife ). The couples were Mormons and the marriage between them was carried out in the Mormon church at Utah, USA. The petitioner (husband) later renounced the Mormon faith and was excommunicated while his wife was declared free to marry again and which she did with the co-respondent in Utah (Polygamy was practiced among Mormons in Utah). The petitioner (husband) later resumed his English domicile and filed the petition for divorce. However the petition was dismissed.
The logical consideration of the court was that it was not bothered upon the rights of succession or the legitimacy of polygamous marriage among Mormons in Utah BUT THAT in the law of England such unions are not recognized per se. Thus, it is humbly opined that the word “unions”, using the literal construction test and juxtaposed against the period of time it was used, makes reference to polygamous marriage only.
1.2 The salient features in Hyde v Hyde
The decision in Hyde v Hyde highlighted features that were reflective of the trend of thought, customs and religious convictions that prevailed and ruled that period of time. Summarily, the key features highlighted are as ensues:
a). Marriage was considered to be an INSTITUITION either religious
or civil in nature and transcended a mere contract.
b). Marriage creates mutual rights and obligations and confers a
status.
c). The status conferred is that of HUSBAND and WIFE which was
recognized throughout Christendom.
d). That status of HUSBAND and WIFE creates a spectrum of rights and obligations upon their off-springs.
e). Marriage is a UNION for LIFE – “till death do us apart”
f). Marriage was taken to mean monogamous marriage and polygamy was absolutely repulsive and cursed.
The phraseology in the quotation “to the exclusion of others”, it is surmised, is meant to exclude others i.e more than one man or one woman into the matrix of marriage. The decision itself has not expressly stated this but intuitively based on the thrust of the issue on hand theni.e divorce based on adultery the phraseology could not have meant anything else.
2. THE ROLE OF HYDE v HYDE IN THE PRESENT ERA
Juxtaposing the case law against the present bedrock of like events of the era would bring to surface several inherent deficiencies in the decision itself, let alone its relevancy in varied jurisdictions.
Firstly, Hyde v Hyde is certainly out of tune with our times . Marriage whilst still being viewed as an ideal relationship in the abstract is no longer viewed as essential, desirable or even practical in the 21st century. The traditional functions of families (such as sexual intimacy, parenting and companionship ) are no longer the exclusive domain of married couples.
In the present era, the tenacity and religious fervour for upholding moral values is fading. It is fashionable and a mere social status to appear religious. Marriage for legitimizing sex is now an archaic phrase. The new-age mantra is “Sex without strings, relationships without rings”.
Thirdly, Hyde v Hyde has been overtly over-enthusiastic about life-
long associations. Presently, serial monogamy is slowly replacing marriage for life. Essentially it is still marriage of one man with one woman but certainly it is “not union for life.”
Undoubtedly, the case law has not been predictive of the possible future evolutions and transformation in human associations. Today we witness a reinvention of the concept of marriage as propounded in Hyde v Hyde. Governments are being tested to their limits by street-marches of gay and lesbian associations demanding recognition premised upon Human Rights ; for fear that rejection of recognition would translate itself in dismal electoral vote counts these governments are indecisive. Governments in countries like Australia and New Zealand have been adoptive of changes and are giving away rights to other relationships as well.
3. PERPLEXING QUESTIONS LEFT UNANSWERED
It is submitted that the decision in Hyde v Hyde is grossly at variance in terms of relevancy with the present and imminent backdrop of societal development.
The dissenting judgement of Martens J in the case of Caroline Cosssey and his view thus :
“..marriage is far more than a union which legitimates sexual intercourse and aims at procreating.”
is truly reflective of the life-style today. Did Stephen Hawkings, the holder of the Lucasian chair and deemed the greatest physicist after Einstein marry for procreation ? He could hardly move his limbs apart from his mouth and head and spoke through a computerized voice synthesizer.
Today the legislature in UK and Europe are dumbfounded with onslaughts of calls for social reforms pertaining to marriage. In 2002, the ECHR in Goodwin v The United Kingdom; I v The United Kingdom criticized the UK government for its lack of action. It found against the UK and held that the rights of two transgendered people had been breached under Articles 8 and 2 of the ECHR 1950. Possibly inspired by the criticism Thorpe LJ in Bellinger v Bellinger made his famous dissenting judgment which loftily threw aside Corbett v Corbett’s emphasis on chromosomal, gonadal aand genital considerations. The psychological factor is today being given credence. Sadly, Hyde v Hyde’s decision did not encompass this development.
The world of scientific development is fast developing .The Human Genome Project has been completed successfully and this gives scientists all over to find alternatives to the real things – artificial joints have replaced original joints afflicted with osteoarthritis, the wombs of surrogate mothers have become the labyrinth of growth of foetus conceived by different heterosexuals and the list goes on. Artificial Intelligence is now the norm and in years to come probably a robotic female or a male replete with all the natural sexual attributes. The growth in this area is already conceived and scientists are working on to create this breakthrough. In other words, humanoid robots may soon become spouses and mates .
4. THE RELEVANCY OF HYDE V HYDE IN VARIED JURISDICTIONS.
4.1 In Malaysia – pre 1982
The Pre-1982 was chaotic as far as matrimonial law in Malaysia is concerned. There was a plethora of laws applicable to Non-Muslims e.g the Marriage Ordinance 1952, Christian Marriage Ordinance 1956 and various other customary laws. As for the Muslims, they were untouched by the Civil Law and their position post 1982 remained unchanged.
The position of the Muslims
As for the Muslims, marriage was regarded as tie which is pure and honourable. It is tenaciously believed that God created wives for men to enable them to find happiness with each other and to create ties of love and progeny. The marriage begins with a formal request from a man for the hand of a woman who must be single, divorced or widowed ( i,e free from ties with other men). Some of the conditions for marriage are :
a). Marriage must be made between a man and a woman. (ie de facto marriages were shunned in toto ).
b). The father of the bride must be present, necessarily, to give
away her in most cases.
c). Two witnesses to the marriage must be present.
d). Intention to marry must be articulated by the man and the
bride must consent.
A woman who is already married is not allowed to marry again while the marriage is subsisting and where a marriage is terminated by divorce or death of the husband, the wife is only allowed to marry after a compulsory period of waiting called the iddah.
Under the Muslim Law, a male is permitted to marry more than one wife up to a maximum of four, provided he is ABLE TO TREAT his wives EQUALLY ( viewed as an open carte blanche to men in indulging in their marriage commitments by woman. This fact certainly is not in conformity with Hyde v .Hyde. The marriage also does not affect the personal status of the women – she is free to own her own property and all monies earned belong to her. There is an important sanction namely that the marriage cannot be solemnized within the prohibited degrees of consanguinity. A problem however exists, what if the bride or groom was the resultant product of a known mother and unknown father in the primal form eg sperm from the sperm bank or human clone.
The position of the Chinese .
The status of women among the Chinese changes with marriage i.e
“ when you are a child you obey your father, when you are married you
obey your husband, in old age you obey your son.”
The women in Chinese homes therefore never had a position of their
own or a position independent of a male.
Customary marriages among the Chinese is essentially polygamous eg the “tsai” (first wife is superior to the “tsip” (secondary wives) and rights Re Lao Leong An (1893) 1 SSLR 1. Polygamy was essentially practiced because it was important among the Chinese that a marriage begets a male child who carries on his father’s name into progeny. The children of daughter only carry the names of their husbands. This aspect is definitely not in concord with Hyde v Hyde especially the main theme of marriage between one man and one woman.
Under the Registration of Marriage Ordinance1952, a couple could register only as a help in proving marriage and nothing else . The form or status of marriage remained unaltered.
The position of the Indians
Customary marriages among the Indians (except for the Ceylon and Tamil Hindus) were polygamous. This, like that for Chinese, certainly is at variance with the position envisaged in Hyde v Hyde.
The position of women, among the Indians, is basically one of subordination. The Manu- Samhitta , a set of old books, states thus:
“women must be honoured by those who desire their welfare and where women were not honoured, no sacred rite yields rewards, that where female relatives live in sorrow the family soon perishes and hence men who seek welfare should always honour women”
And yet,
‘day and night women must be kept in dependence by males of their families..her father protects her in childhood, her husband protects her in youth and her sons protect her in old age. A woman is never fit for independence.”
However, in the home, the woman is accorded as indispensable place especially in the preservation of traditions, values and religions. As a practice, they are ornamental display of their husbands-not to decry his shortcomings in public and to uphold the dignity of the husband’s home in high regard at all times.
4.2. The post 1982 era.
The Law Reform (Marriage & Divorces) Act 1982 introduced new law of marriage and divorce especially for non-Muslims. It swept aside the old customary laws , save for Muslims, natives of Sabah and Sarawak and aborigines of Malaya and introduced uniformity. Viewed from a controversial angle, the Indians and Chinese have been robbed of their cultural vestiges with the sweep of a pen. Cultural practices in terms of marriage brought over as vestiges from their lands are no longer within their reach. This certainly is an insidious move by the law-makers of this country.
The Law Reform (Marriage & Divorces) Act 1982 made provisions for the registration of marriages prior to 1.3.1982. However, failure to comply to do so do not invalidate such marriages. The Act boldly abolished Polygamy :s.5(4) Law Reform (Marriage & Divorces) Act 1982. The law also seem to out-law all classes of marriage which possibly includes the common law marriages : s.69(a) Law Reform (Marriage & Divorces) Act 1982 and s.494 Penal Code. A point to note here is that the ghost of Hyde v Hyde can be seen to reappear with the invocation of the Law Reform (Marriage & Divorces) Act 1982.
Furthermore, s.11 of the Act prescribes the prohibited degrees of sanguinity (impliedly this forbids the reception of spouses hailing from unknown origins in test-tubes and sperm banks where the sources are guarded under strict confidentiality). The Act brought in bold exhortations of consent of spouses above 21 years of age . If they are under that age group apart from this the consent of parents were also required. Nevertheless, dispensation of this consent requirement was possible but only with the court’s intervention alone.
Section 69(d) of the Act is suggestive that the parties to marriage must be male and female honouring Hyde v Hyde. In a way, the chromosomal, gonadal and genitalia factors considered by Omrod J in Corbett v Corbett (otherwise Ashley) still hold sway – discounting the reception of marriage between transsexuals and homosexuals etc ).
4.3. What about cohabitation ?
There are indications of the existence of pre and extra marital cohabitation among the Chinese and Tamil Indians. In 1960, a study of the Hindu Tamil Indians of the Pan Malaya Rubber Plantation found that :
- Cohabitation (certtu-k-kolu-tal) prevailed as unions of convenience and cooperation of the opposite sex among early migrants.
- Among the Chinese, cohabitation is well-known. In several cases, the courts even held that such unions may give rise to the presumption f marriage (man and tsip reputation). However, after the Law Reform (Marriage & Divorces) Act 1982, the “man and tsip “ relationship isn’t recognised to be sufficient to constitute marriage and only monogamous marriages are recognized in law.
Apart from this, there is nothing in the Law Reform (Marriage & Divorces) Act 1982 to prohibit and punish cohabitation expressly.
Among the Muslims, there are express statutory provisions in State enactments which prohibit cohabitation, fornication, illicit sexual intercourse and khalwat- making them offences punishable with imprisonment and/or fine.
Together with this and the position of Islam as the religion of the Federation (Article 3(1) of the Federal Constitution) and the ruling party’s commitment towards infusing Islamic values wherever possible.
Hence, it may be safely assumed that marriage as envisaged by Hyde v Hyde in Malaysia shall remain relevant for the present. The strong cultural base and weak footing of Human Rights sentiment here shall protect the Marriage Institution.
However, de facto relations, cohabitation, union among same sexes shall also remain staggering alongside the mainstream recognition of marriage as between a man and woman only.
Hence, as far as the Chinese and Indians in Malaysia ( i.e after 1982) are concerned, Hyde v Hyde’ s contention as per the quotation in the question is relevant. However, as for the Muslims in Malaysia marriage need not be necessarily be between one man and one woman. It can be polygamous provided it is within the prescribed parameters as circumscribed by Islamic teachings. The Muslim jurists have laid down the following conditions if someone wants to take more than one wife:
(i). He should have sufficient financial resources to look after the needs of the additional wives that he has taken.
(ii). He must do equal justice to them all.Each wife should be treated equally as far as the fulfillment of their conjugal and other rights is concerned.
Hence, with the Muslims, Hyde v Hyde is of little significance.
4.4 Relevancy of Hyde v Hyde in the United Kingdom.
The UK “state of affairs” under which Hyde v Hyde was decided has been under tremendous changes and is currently facing an onslaught of challenges.
Fundamentally, marriage is still recognised as being between a man and a woman eg; section 11(b) Matrimonial Causes Act 1973 makes second marriage void.
The religious fervor of Christianity is a strong bulwark against impending ramifications . The following exhortations with Christian sentiment deeply embedded in them still have its influence . For example :
“You are pronounced man and wife still death do you apart” is still the sanctimonious prelude before the Church bell and the much awaited frenzied utterance by the Pastor , “ you may kiss your bride now ” begin.
The denouncements of the sins of the flesh in the New Testament such as :
“Thou shalt not covet thy neighbour’s wife”
“Anyone who looketh on a woman to lust after her committed
adultery with her already in the heart”
still reverberates in the Bible study classes in the perimeters of the churches.
Couple with these, the confinement of marriage to certain permitted degrees (First Schedule of Marriage Act 1949, Children Act 1975 and Prohibited Degree Relationship Act 1986 ) still remain relevant in UK.
4.5 The changing panorama of events in the matrimonial front.
Legal exclusion from the status of marriage either because of sexual orientation, gender categorization, or lack of compliance with formalities has become the norm these days. It has brought about a wave of new social and legal thinking. The social thinking and the resultant action certainly transcend the Hyde v Hyde’s conception of what marriage is or ought to be. This is apparent in three different aspects.
Transexuals
Bellinger v Bellinger has brought about a new line of thought - in terms of viewing transexuals.. Even though Mrs Bellinger’s application was only for a declaration that their marriage of 20 years was valid because she was female for the purposes of section 11 ( c ) Matrimonial Causes Act 1973, her case has driven home the point that judicial discretion is a valid means of legal change. In that case, Thorpe J (in his dissenting judgment) drew attention to judgments of the European Court of Human Rights which pressed or the need for law regarding transexuals to be kept under review in the light of the new scientific developments. Another inroad into what Hyde v Hyde would have abnoxious and unsanctimonious.
Presumption of marriage and cohabitation.
The concept of presumption of marriage where a man and a woman have cohabited for such a length of time has a long history but seldom pleaded. In Pazpena De Vire v Pazpena De Vire in 2001, such a long cohabitation was deemed to be marriage. Here therefore, by dint of the legal tool of presumption, a cohabitation can metamorphosize into marriage.
Gender Recognition Act 2004 and Civil Partnership Act 2004.
Once a gender recognition certificate is obtained from the Gender Recognition Panel, then for all legal purposes, the applicant shall be treated as per their acquired gender than their birth certificate gender. The Gender Recognition Act 2004 has provided this novel facility.
Presently, same-sex couples can enter into quasi-marriage and be regarded as each other’s family. The Civil Partnership Act 2004 permits this. Transgendered persons , who have obtained gender recognition certificates from the Gender Recognition Panel, may enter into a civil partnership with member of the same sex to that of their newly acquired gender. The parties only need to have the relevant mental and legal capacity and must not be within prohibited degrees of kindred.
Hence, with all these ramificatiions and more knocking vociferously at the doors of the legal monolith of UK , it is indeed questionable as to whether the quotation that “ Marriage is between one man and one woman to the exclusion of others” as in Hyde v Hyde still maintains its relevancy in there – incidentally from where it had its genesis !
4.6 Relevancy of Hyde v Hyde in the New Zealand.
Sections 29, 30 and 31(1) of the Marriage Act 1955 makes a marriage void ibinitio if one of the parties to the marriage is already married thereby indicating the upholding of monogamous marriages.
However, several developments have made the union between man and woman a questionable aspect thereby rendering the quotation in Hyde v Hyde as irrelevant as far as New Zealand is concerned.
In 1995, in the New Zealand case of AG v Otahuhu Family Court , a transsexual person’s reassigned sex was recognized for the purpose of validating a marriage as opposed to Bellinger v Bellinger.
The ratio being :
“ if society allows such a person to undergo therapy and surgery in order to fulfill that desire, then it ought to allow such a persons to function as fully as possible in their reassigned sex.”
4.7 The fast changing family laws in New Zealand.
Initially, New Zealand had eschewed gay marriage just like most countries in Europe. However, later it opted for the less arguable but easy to sell legal model in guise of Civil Unions. Civil Unions in New Zealand is available to both heterosexuals and homosexuals parties and it mirrors that for marriages. Thus, there are similar rule for invalidity for example need for consent and prohibition within certain degrees of relationship. Also the rule for dissolution of marriage, i.e the 2 years living apart requirement, is also available in civil unions. Pertinently, a couple can convert from marriage into civil unions or vice versa ( if heterosexual ).
Same rights as regards immigration, next of kin status, social welfare, matrimonial property as in marriages are extended to civil unions as well.
Hence, there is growing trend that many opt for civil unions because the religious overtones implied or claimed for the word “ marriage” can be avoided.
It is therefore, abundantly clear that , as far as New Zealand is concerned it has completely freed itself from the shackles of the quotation in Hyde v Hyde. It stands foremost in bringing about changes and ramifications that have reverberating impact, in one way or another , in the other countries with allied problems, culture and the need to reform.
5. CONCLUSSION.
The decision in Hyde v Hyde, truly a landmark legal piece, has withstood the test of time over the eons. However, with the recent spate of demands for change under Human Rights and humanity plus the changes in marital relationship, its lustre is slowly being lost as can be seen in Malaysia, United Kingdom and New Zealand. On one hand the institution of marriage as conceived of in the past has metamorphosed into a plethora of varied hybrids . Yet on the other, civil unions and civil partnerships are creating institutions in their own accord.
*******************************************
Bibliography
1. Cohabitation, Marriage and the Law – Social Change and Legal Reform
in the 21st Century by Anne Barlow, Simon Duncan, Grace James and Alison Park.
2. Catholic Education Resource Center – Robert P. George
3. The Economist 6 January 2001
4. Landmark Family Legislation by Bill Atkin in International Survey of Family Law.,2006
5. Family Law in Malaysia & Singapore – Ahmad Ibrahim
6. Family and Divorce in Malaysia (1983) 1 CLJ 220 by Women Lawyers’ Association
7. Women in Shariah by Abdul Rahman I Doi
8. Reshaping Marriage and the Family – The GRA 2004 and the CPA 2004 by Mary Welstead
9. Catholic Education Resource Centre – Robert P. George
10. Family Law in Malaysia – Mimi Kamariah Majid
11. A History of the Wife by Marilyn Yalom Harper Collins
------------------------------------------------------------------------------------------------
The difficulty with marriage is that we fall in love with a personality but must live with a character - (Peter De Vire)
Marriage is the alliance of two people, one who never remembers birthdays and the other who never forgets them - (Ogden Nash)
Marriage is like a phone call in the night : first the ring then you wake up - (Evelyn Hendrickson).
Marriage is one subject on which all women agree and all man disagree. - (Oscar Wilde)
The quotation in the question is as regards a case in 1866 decided before Lord Penzance. It revolved primarily around the issue of dissolution of marriage on the grounds of adultery by the respondent (wife ). The couples were Mormons and the marriage between them was carried out in the Mormon church at Utah, USA. The petitioner (husband) later renounced the Mormon faith and was excommunicated while his wife was declared free to marry again and which she did with the co-respondent in Utah (Polygamy was practiced among Mormons in Utah). The petitioner (husband) later resumed his English domicile and filed the petition for divorce. However the petition was dismissed.
The logical consideration of the court was that it was not bothered upon the rights of succession or the legitimacy of polygamous marriage among Mormons in Utah BUT THAT in the law of England such unions are not recognized per se. Thus, it is humbly opined that the word “unions”, using the literal construction test and juxtaposed against the period of time it was used, makes reference to polygamous marriage only.
1.2 The salient features in Hyde v Hyde
The decision in Hyde v Hyde highlighted features that were reflective of the trend of thought, customs and religious convictions that prevailed and ruled that period of time. Summarily, the key features highlighted are as ensues:
a). Marriage was considered to be an INSTITUITION either religious
or civil in nature and transcended a mere contract.
b). Marriage creates mutual rights and obligations and confers a
status.
c). The status conferred is that of HUSBAND and WIFE which was
recognized throughout Christendom.
d). That status of HUSBAND and WIFE creates a spectrum of rights and obligations upon their off-springs.
e). Marriage is a UNION for LIFE – “till death do us apart”
f). Marriage was taken to mean monogamous marriage and polygamy was absolutely repulsive and cursed.
The phraseology in the quotation “to the exclusion of others”, it is surmised, is meant to exclude others i.e more than one man or one woman into the matrix of marriage. The decision itself has not expressly stated this but intuitively based on the thrust of the issue on hand theni.e divorce based on adultery the phraseology could not have meant anything else.
2. THE ROLE OF HYDE v HYDE IN THE PRESENT ERA
Juxtaposing the case law against the present bedrock of like events of the era would bring to surface several inherent deficiencies in the decision itself, let alone its relevancy in varied jurisdictions.
Firstly, Hyde v Hyde is certainly out of tune with our times . Marriage whilst still being viewed as an ideal relationship in the abstract is no longer viewed as essential, desirable or even practical in the 21st century. The traditional functions of families (such as sexual intimacy, parenting and companionship ) are no longer the exclusive domain of married couples.
In the present era, the tenacity and religious fervour for upholding moral values is fading. It is fashionable and a mere social status to appear religious. Marriage for legitimizing sex is now an archaic phrase. The new-age mantra is “Sex without strings, relationships without rings”.
Thirdly, Hyde v Hyde has been overtly over-enthusiastic about life-
long associations. Presently, serial monogamy is slowly replacing marriage for life. Essentially it is still marriage of one man with one woman but certainly it is “not union for life.”
Undoubtedly, the case law has not been predictive of the possible future evolutions and transformation in human associations. Today we witness a reinvention of the concept of marriage as propounded in Hyde v Hyde. Governments are being tested to their limits by street-marches of gay and lesbian associations demanding recognition premised upon Human Rights ; for fear that rejection of recognition would translate itself in dismal electoral vote counts these governments are indecisive. Governments in countries like Australia and New Zealand have been adoptive of changes and are giving away rights to other relationships as well.
3. PERPLEXING QUESTIONS LEFT UNANSWERED
It is submitted that the decision in Hyde v Hyde is grossly at variance in terms of relevancy with the present and imminent backdrop of societal development.
The dissenting judgement of Martens J in the case of Caroline Cosssey and his view thus :
“..marriage is far more than a union which legitimates sexual intercourse and aims at procreating.”
is truly reflective of the life-style today. Did Stephen Hawkings, the holder of the Lucasian chair and deemed the greatest physicist after Einstein marry for procreation ? He could hardly move his limbs apart from his mouth and head and spoke through a computerized voice synthesizer.
Today the legislature in UK and Europe are dumbfounded with onslaughts of calls for social reforms pertaining to marriage. In 2002, the ECHR in Goodwin v The United Kingdom; I v The United Kingdom criticized the UK government for its lack of action. It found against the UK and held that the rights of two transgendered people had been breached under Articles 8 and 2 of the ECHR 1950. Possibly inspired by the criticism Thorpe LJ in Bellinger v Bellinger made his famous dissenting judgment which loftily threw aside Corbett v Corbett’s emphasis on chromosomal, gonadal aand genital considerations. The psychological factor is today being given credence. Sadly, Hyde v Hyde’s decision did not encompass this development.
The world of scientific development is fast developing .The Human Genome Project has been completed successfully and this gives scientists all over to find alternatives to the real things – artificial joints have replaced original joints afflicted with osteoarthritis, the wombs of surrogate mothers have become the labyrinth of growth of foetus conceived by different heterosexuals and the list goes on. Artificial Intelligence is now the norm and in years to come probably a robotic female or a male replete with all the natural sexual attributes. The growth in this area is already conceived and scientists are working on to create this breakthrough. In other words, humanoid robots may soon become spouses and mates .
4. THE RELEVANCY OF HYDE V HYDE IN VARIED JURISDICTIONS.
4.1 In Malaysia – pre 1982
The Pre-1982 was chaotic as far as matrimonial law in Malaysia is concerned. There was a plethora of laws applicable to Non-Muslims e.g the Marriage Ordinance 1952, Christian Marriage Ordinance 1956 and various other customary laws. As for the Muslims, they were untouched by the Civil Law and their position post 1982 remained unchanged.
The position of the Muslims
As for the Muslims, marriage was regarded as tie which is pure and honourable. It is tenaciously believed that God created wives for men to enable them to find happiness with each other and to create ties of love and progeny. The marriage begins with a formal request from a man for the hand of a woman who must be single, divorced or widowed ( i,e free from ties with other men). Some of the conditions for marriage are :
a). Marriage must be made between a man and a woman. (ie de facto marriages were shunned in toto ).
b). The father of the bride must be present, necessarily, to give
away her in most cases.
c). Two witnesses to the marriage must be present.
d). Intention to marry must be articulated by the man and the
bride must consent.
A woman who is already married is not allowed to marry again while the marriage is subsisting and where a marriage is terminated by divorce or death of the husband, the wife is only allowed to marry after a compulsory period of waiting called the iddah.
Under the Muslim Law, a male is permitted to marry more than one wife up to a maximum of four, provided he is ABLE TO TREAT his wives EQUALLY ( viewed as an open carte blanche to men in indulging in their marriage commitments by woman. This fact certainly is not in conformity with Hyde v .Hyde. The marriage also does not affect the personal status of the women – she is free to own her own property and all monies earned belong to her. There is an important sanction namely that the marriage cannot be solemnized within the prohibited degrees of consanguinity. A problem however exists, what if the bride or groom was the resultant product of a known mother and unknown father in the primal form eg sperm from the sperm bank or human clone.
The position of the Chinese .
The status of women among the Chinese changes with marriage i.e
“ when you are a child you obey your father, when you are married you
obey your husband, in old age you obey your son.”
The women in Chinese homes therefore never had a position of their
own or a position independent of a male.
Customary marriages among the Chinese is essentially polygamous eg the “tsai” (first wife is superior to the “tsip” (secondary wives) and rights Re Lao Leong An (1893) 1 SSLR 1. Polygamy was essentially practiced because it was important among the Chinese that a marriage begets a male child who carries on his father’s name into progeny. The children of daughter only carry the names of their husbands. This aspect is definitely not in concord with Hyde v Hyde especially the main theme of marriage between one man and one woman.
Under the Registration of Marriage Ordinance1952, a couple could register only as a help in proving marriage and nothing else . The form or status of marriage remained unaltered.
The position of the Indians
Customary marriages among the Indians (except for the Ceylon and Tamil Hindus) were polygamous. This, like that for Chinese, certainly is at variance with the position envisaged in Hyde v Hyde.
The position of women, among the Indians, is basically one of subordination. The Manu- Samhitta , a set of old books, states thus:
“women must be honoured by those who desire their welfare and where women were not honoured, no sacred rite yields rewards, that where female relatives live in sorrow the family soon perishes and hence men who seek welfare should always honour women”
And yet,
‘day and night women must be kept in dependence by males of their families..her father protects her in childhood, her husband protects her in youth and her sons protect her in old age. A woman is never fit for independence.”
However, in the home, the woman is accorded as indispensable place especially in the preservation of traditions, values and religions. As a practice, they are ornamental display of their husbands-not to decry his shortcomings in public and to uphold the dignity of the husband’s home in high regard at all times.
4.2. The post 1982 era.
The Law Reform (Marriage & Divorces) Act 1982 introduced new law of marriage and divorce especially for non-Muslims. It swept aside the old customary laws , save for Muslims, natives of Sabah and Sarawak and aborigines of Malaya and introduced uniformity. Viewed from a controversial angle, the Indians and Chinese have been robbed of their cultural vestiges with the sweep of a pen. Cultural practices in terms of marriage brought over as vestiges from their lands are no longer within their reach. This certainly is an insidious move by the law-makers of this country.
The Law Reform (Marriage & Divorces) Act 1982 made provisions for the registration of marriages prior to 1.3.1982. However, failure to comply to do so do not invalidate such marriages. The Act boldly abolished Polygamy :s.5(4) Law Reform (Marriage & Divorces) Act 1982. The law also seem to out-law all classes of marriage which possibly includes the common law marriages : s.69(a) Law Reform (Marriage & Divorces) Act 1982 and s.494 Penal Code. A point to note here is that the ghost of Hyde v Hyde can be seen to reappear with the invocation of the Law Reform (Marriage & Divorces) Act 1982.
Furthermore, s.11 of the Act prescribes the prohibited degrees of sanguinity (impliedly this forbids the reception of spouses hailing from unknown origins in test-tubes and sperm banks where the sources are guarded under strict confidentiality). The Act brought in bold exhortations of consent of spouses above 21 years of age . If they are under that age group apart from this the consent of parents were also required. Nevertheless, dispensation of this consent requirement was possible but only with the court’s intervention alone.
Section 69(d) of the Act is suggestive that the parties to marriage must be male and female honouring Hyde v Hyde. In a way, the chromosomal, gonadal and genitalia factors considered by Omrod J in Corbett v Corbett (otherwise Ashley) still hold sway – discounting the reception of marriage between transsexuals and homosexuals etc ).
4.3. What about cohabitation ?
There are indications of the existence of pre and extra marital cohabitation among the Chinese and Tamil Indians. In 1960, a study of the Hindu Tamil Indians of the Pan Malaya Rubber Plantation found that :
- Cohabitation (certtu-k-kolu-tal) prevailed as unions of convenience and cooperation of the opposite sex among early migrants.
- Among the Chinese, cohabitation is well-known. In several cases, the courts even held that such unions may give rise to the presumption f marriage (man and tsip reputation). However, after the Law Reform (Marriage & Divorces) Act 1982, the “man and tsip “ relationship isn’t recognised to be sufficient to constitute marriage and only monogamous marriages are recognized in law.
Apart from this, there is nothing in the Law Reform (Marriage & Divorces) Act 1982 to prohibit and punish cohabitation expressly.
Among the Muslims, there are express statutory provisions in State enactments which prohibit cohabitation, fornication, illicit sexual intercourse and khalwat- making them offences punishable with imprisonment and/or fine.
Together with this and the position of Islam as the religion of the Federation (Article 3(1) of the Federal Constitution) and the ruling party’s commitment towards infusing Islamic values wherever possible.
Hence, it may be safely assumed that marriage as envisaged by Hyde v Hyde in Malaysia shall remain relevant for the present. The strong cultural base and weak footing of Human Rights sentiment here shall protect the Marriage Institution.
However, de facto relations, cohabitation, union among same sexes shall also remain staggering alongside the mainstream recognition of marriage as between a man and woman only.
Hence, as far as the Chinese and Indians in Malaysia ( i.e after 1982) are concerned, Hyde v Hyde’ s contention as per the quotation in the question is relevant. However, as for the Muslims in Malaysia marriage need not be necessarily be between one man and one woman. It can be polygamous provided it is within the prescribed parameters as circumscribed by Islamic teachings. The Muslim jurists have laid down the following conditions if someone wants to take more than one wife:
(i). He should have sufficient financial resources to look after the needs of the additional wives that he has taken.
(ii). He must do equal justice to them all.Each wife should be treated equally as far as the fulfillment of their conjugal and other rights is concerned.
Hence, with the Muslims, Hyde v Hyde is of little significance.
4.4 Relevancy of Hyde v Hyde in the United Kingdom.
The UK “state of affairs” under which Hyde v Hyde was decided has been under tremendous changes and is currently facing an onslaught of challenges.
Fundamentally, marriage is still recognised as being between a man and a woman eg; section 11(b) Matrimonial Causes Act 1973 makes second marriage void.
The religious fervor of Christianity is a strong bulwark against impending ramifications . The following exhortations with Christian sentiment deeply embedded in them still have its influence . For example :
“You are pronounced man and wife still death do you apart” is still the sanctimonious prelude before the Church bell and the much awaited frenzied utterance by the Pastor , “ you may kiss your bride now ” begin.
The denouncements of the sins of the flesh in the New Testament such as :
“Thou shalt not covet thy neighbour’s wife”
“Anyone who looketh on a woman to lust after her committed
adultery with her already in the heart”
still reverberates in the Bible study classes in the perimeters of the churches.
Couple with these, the confinement of marriage to certain permitted degrees (First Schedule of Marriage Act 1949, Children Act 1975 and Prohibited Degree Relationship Act 1986 ) still remain relevant in UK.
4.5 The changing panorama of events in the matrimonial front.
Legal exclusion from the status of marriage either because of sexual orientation, gender categorization, or lack of compliance with formalities has become the norm these days. It has brought about a wave of new social and legal thinking. The social thinking and the resultant action certainly transcend the Hyde v Hyde’s conception of what marriage is or ought to be. This is apparent in three different aspects.
Transexuals
Bellinger v Bellinger has brought about a new line of thought - in terms of viewing transexuals.. Even though Mrs Bellinger’s application was only for a declaration that their marriage of 20 years was valid because she was female for the purposes of section 11 ( c ) Matrimonial Causes Act 1973, her case has driven home the point that judicial discretion is a valid means of legal change. In that case, Thorpe J (in his dissenting judgment) drew attention to judgments of the European Court of Human Rights which pressed or the need for law regarding transexuals to be kept under review in the light of the new scientific developments. Another inroad into what Hyde v Hyde would have abnoxious and unsanctimonious.
Presumption of marriage and cohabitation.
The concept of presumption of marriage where a man and a woman have cohabited for such a length of time has a long history but seldom pleaded. In Pazpena De Vire v Pazpena De Vire in 2001, such a long cohabitation was deemed to be marriage. Here therefore, by dint of the legal tool of presumption, a cohabitation can metamorphosize into marriage.
Gender Recognition Act 2004 and Civil Partnership Act 2004.
Once a gender recognition certificate is obtained from the Gender Recognition Panel, then for all legal purposes, the applicant shall be treated as per their acquired gender than their birth certificate gender. The Gender Recognition Act 2004 has provided this novel facility.
Presently, same-sex couples can enter into quasi-marriage and be regarded as each other’s family. The Civil Partnership Act 2004 permits this. Transgendered persons , who have obtained gender recognition certificates from the Gender Recognition Panel, may enter into a civil partnership with member of the same sex to that of their newly acquired gender. The parties only need to have the relevant mental and legal capacity and must not be within prohibited degrees of kindred.
Hence, with all these ramificatiions and more knocking vociferously at the doors of the legal monolith of UK , it is indeed questionable as to whether the quotation that “ Marriage is between one man and one woman to the exclusion of others” as in Hyde v Hyde still maintains its relevancy in there – incidentally from where it had its genesis !
4.6 Relevancy of Hyde v Hyde in the New Zealand.
Sections 29, 30 and 31(1) of the Marriage Act 1955 makes a marriage void ibinitio if one of the parties to the marriage is already married thereby indicating the upholding of monogamous marriages.
However, several developments have made the union between man and woman a questionable aspect thereby rendering the quotation in Hyde v Hyde as irrelevant as far as New Zealand is concerned.
In 1995, in the New Zealand case of AG v Otahuhu Family Court , a transsexual person’s reassigned sex was recognized for the purpose of validating a marriage as opposed to Bellinger v Bellinger.
The ratio being :
“ if society allows such a person to undergo therapy and surgery in order to fulfill that desire, then it ought to allow such a persons to function as fully as possible in their reassigned sex.”
4.7 The fast changing family laws in New Zealand.
Initially, New Zealand had eschewed gay marriage just like most countries in Europe. However, later it opted for the less arguable but easy to sell legal model in guise of Civil Unions. Civil Unions in New Zealand is available to both heterosexuals and homosexuals parties and it mirrors that for marriages. Thus, there are similar rule for invalidity for example need for consent and prohibition within certain degrees of relationship. Also the rule for dissolution of marriage, i.e the 2 years living apart requirement, is also available in civil unions. Pertinently, a couple can convert from marriage into civil unions or vice versa ( if heterosexual ).
Same rights as regards immigration, next of kin status, social welfare, matrimonial property as in marriages are extended to civil unions as well.
Hence, there is growing trend that many opt for civil unions because the religious overtones implied or claimed for the word “ marriage” can be avoided.
It is therefore, abundantly clear that , as far as New Zealand is concerned it has completely freed itself from the shackles of the quotation in Hyde v Hyde. It stands foremost in bringing about changes and ramifications that have reverberating impact, in one way or another , in the other countries with allied problems, culture and the need to reform.
5. CONCLUSSION.
The decision in Hyde v Hyde, truly a landmark legal piece, has withstood the test of time over the eons. However, with the recent spate of demands for change under Human Rights and humanity plus the changes in marital relationship, its lustre is slowly being lost as can be seen in Malaysia, United Kingdom and New Zealand. On one hand the institution of marriage as conceived of in the past has metamorphosed into a plethora of varied hybrids . Yet on the other, civil unions and civil partnerships are creating institutions in their own accord.
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Bibliography
1. Cohabitation, Marriage and the Law – Social Change and Legal Reform
in the 21st Century by Anne Barlow, Simon Duncan, Grace James and Alison Park.
2. Catholic Education Resource Center – Robert P. George
3. The Economist 6 January 2001
4. Landmark Family Legislation by Bill Atkin in International Survey of Family Law.,2006
5. Family Law in Malaysia & Singapore – Ahmad Ibrahim
6. Family and Divorce in Malaysia (1983) 1 CLJ 220 by Women Lawyers’ Association
7. Women in Shariah by Abdul Rahman I Doi
8. Reshaping Marriage and the Family – The GRA 2004 and the CPA 2004 by Mary Welstead
9. Catholic Education Resource Centre – Robert P. George
10. Family Law in Malaysia – Mimi Kamariah Majid
11. A History of the Wife by Marilyn Yalom Harper Collins
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