THOUGHTS ON THE NATURE OF MARRIAGE

It's the season for thinking and thoughtful writing. The "nature of marriage" has rattled round in my head for months. Law reformers and others who would bring the law up to date, and into line with what may after all be a minority view of modern society, refer thus to several kinds of relationship which are simply not of the nature of marriage.

It's true that so much legal business is concerned with marriages that have gone wrong and sundry other relationships that are outside the definition. Indeed lawyers may seem to have a very negative view of marriage. Many of us are however happily married and would commend the institution. Indeed marriage is one of the foundations of the common law. Marriage, as defined by common law and the English language, is simply a natural relationship.
The essentials of marriage are the commitment of one man and one woman to each other for life, often sharing bed and property. Legal recognition is accorded by the ceremony or form of marriage. Social change may perhaps give legitimacy to informal or de facto marriage. Separation and dissolution may provide escape from the bed. Also the law lets us vary the simple sharing of property.

Physiologically men and women are complementary. Part of the 'nature' of marriage is of course the possibility of children. Domestic relationship which does not involve a man and a woman is not natural - let's not mince words.

Nor is it an issue of human rights. There is nothing in the law (is there?) to prevent those who will, in any other relationship, from making provision for each other by will and contract etc. Surely there is nothing offensive or unfair in denying such persons the benefits if they are perceived as such of the definition of marriage. Their relationships are simply not of the nature of marriage, and - at the risk of being labelled reactionary - I say that law reformers who say otherwise, would make asses of themselves and the law.

If people want to live in what we may call other relationships, that's their business, but they can't - and why on earth should they pretend to - be married. Indeed there will always be couples and other groups who live together for many different reasons; parent and child, siblings, business partners, flatmates and mere friends. It's unnecessary and leads to absurd results to suggest that some such be deemed to be something they are simply not and may have no wish to be.

Let's go further. If a woman and a man live together in domestic relationship, are they automatically to be deemed to be married? The law must surely consider their actual condition and their intentions. Either or both of them may be married already, or they may intend to make no more than a brief adventure or escapade. At what point in their relationship - after one month or a year - is it to be deemed of the nature of marriage?

Again, if two women choose to live with one man in domestic relationship; or if a travelling man has simultaneous relationships with several women in different places; at what point is one or more or which of the relationships to be deemed 'of the nature of marriage'? Is such a 'marriage' to be limited to only one of the women involved? Which of them is to be declared the happy couple? Is the man unwittingly to find himself guilty of bigamy? Is the whole ménage to deemed one marriage?

Do not all these things happen? Let's not mess about with the definition. Unless we have a woman and a man committed to each other, the relationship is not of the nature of marriage.

J R L Tripe, Wanganui.

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THE RIGHT TO BE TREATED EQUALLY UNDER THE LAW

I write to comment on several of the points which JRL Tripe of Wanganui makes in his letter "thoughts on the nature of marriage" in LawTalk 492, 16 February 1998.

Mr Tripe states that "[t]he essentials of marriage are the commitment of one man and one woman to each other for life ...". It is clear that if we go back to 1866 and the case of Hyde v Hyde & Woodmansee [1861-73] All ER 175, we can find what has been deemed by some to be Lord Penzance's 'classic' statement on the elements of a marriage, namely "the voluntary union for life of one man and one women, to the exclusion of all others". The issue before the court in that case, however. was that of bigamy, and therefore the emphasis in that statement must lie on the word "one" and the remainder of that statement must be treated as dicta.It is also clear that, over time, the essentials of legal marriage must change. Indeed, this is exactly what has happened. This 'classic' description of marriage is no longer valid in many respects, namely:

• Legal marriage need no longer be "for life". Divorce is socially and legally recognised in New Zealand.
• Legal marriage need not be "to the exclusion of all others". Adultery is not a ground for divorce.
• Legal marriage need not be between one man and one woman. New Zealand law does recognise bigamy where a bigamous marriage has taken place in a jurisdiction where such a marriage is valid.
• Even voluntariness is a questionable issue. For example, cultural values may dictate that a marriage is perfectly valid even when that marriage is arranged by the parents of the bride and/or the groom. The parties to the marriage may consent, not to the marriage per se, but to the cultural dictates of the society of which they are part.

There is a grave danger in seeking 'traditional' reasons for defining a social institution such as marriage. There is no validity in justifying discrimination because it is something which has happened over a period of time. For example, if we were to go back to 19th century England we would find that an unmarried woman was treated as the property of her father, and when a woman married she became the property of her husband. This is demonstrated when the father-of-the-bride 'gives away' his daughter at the wedding. It can also be demonstrated by the fact that rape of a woman was a property offence against the father or the husband of the rape victim, not an offence against the person of the victim herself. We can say with certainty that such a view of marriage would not be seen as acceptable in 1998.

I would also take issue with Mr Tripe's contention that 'in the nature of marriage' draws on the precept of biological complementarity. The term 'in the nature of marriage' as presented by the courts comprises a list of characteristics of the institution of marriage. In Thompson v Department of Social Welfare [19941 2 NZLR 369, 373, Tipping J included the sharing of a home, a sexual relationship, emotional support and companionship, socialising as a couple, sharing responsibilities for any relevant children, sharing household and domestic tasks, sharing expenses and financial responsibilities, going on holiday together, conducting themselves towards, and being treated by friends, relations and others, as if a married couple, and the commitment to each other for the foreseeable future. Procreation and the raising of children is, as Mr Tripe himself states, only one element of a marriage, and it would be invalid to suggest that where any couple is unable to produce children, they must not be permitted to marry.

Marriage is not a physical institution dedicated to the factory-like production of children. Marriage is, however, a social institution dedicated to mutual sharing and caring, mutual loving and support, and mutual commitment of the partners, as well as to the supervision and care for children where that may be appropriate.

Mr Tripe also states that "there is nothing in the law ... to prevent those who will, ... from making provision for each other by will". True, it is possible for a gay man to leave property by will to his same-sex partner. However, a look at the Family Protection Act 1955 s.3 will show us that such a will can be challenged (and has been challenged successfully) by members of the deceased's family. A will in these circumstances becomes no more than a 'statement of intent' and blood family (next-of-kin), who maybe have had no real connection with the deceased for a period of time, are able to step in and disinherit the deceased's partner against the deceased's stated will. In reality the legal protection which Mr Tripe alludes to is not present. Same-sex couples are denied the ability to enter a cohabitation agreement under the Property Law Act 1952 s 40A. Same-sex couples, where one of the partners is from an overseas country, must prove that they have been in a "genuine and stable relationship" for a period of four years before permanent residence can be granted. For heterosexual de facto couples, the period is two years. For married couples there is no time requirement. There are other examples, such as adoption, but the point is to say that same-sex couples can protect their property and family rights in other ways is absolutely not correct.

Justice Thomas in Quilter v Attorney-General stated that:

• Marriage is a fundamental civil right.
• To deny same-sex couples access to marriage is discriminatory.
• To discriminate against a group within society is to deny them full participation in that society.

New Zealand has its own domestic human rights legislation which purports to protect its citizens against discrimination. New Zealand has also entered various multi-lateral international human rights treaties and thereby accepted an obligation to work further towards eliminating all forms of discrimination, and treating all citizens equally under the law.

Same-sex couples in New Zealand, committed to their partners, and including those raising children, are not asking for any special privileges. Rather, they are asking for the right to be treated equally under the law. This means not only to receive the rights and privileges which opposite-sex couples take for granted in their everyday life, but also to accept the responsibility and obligations which are part of the package of equality.

N C Christie, Wellington.

LeGaLE, PO Box 5235, Wellington, New Zealand