Could the State do Without Marriage Law?

Hill, Daniel J ORCID: 0000-0003-4546-8662 (2022) Could the State do Without Marriage Law? ECCLESIASTICAL LAW JOURNAL, 24 (2). pp. 123-147.

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Abstract

<jats:p>This article argues that marriage is a divine institution that pre-dates the state, and marriages are supernaturally effected by God consequent on the exchange of marital consent by the parties, whether or not the state recognises them as marriages. In fact, taking note of, and legislating about, marriage thus properly conceived is not within the state's remit. Despite this, the law in England and Wales is involved with the institution of marriage in three main ways: (1) it purports to define marriage, and its entry and exit conditions; (2) it passes laws affording or denying certain legal benefits or penalties on the basis of marital status; and (3) it registers marriages, and in practice imposes or denies the benefits or penalties just mentioned on the basis of registration of marriage, or lack of it. The supernatural action on God's part of creating marriages is not a fit subject for such involvement on the state's part. The underlying exchange of marital consent by the parties is, by contrast, within the state's sphere of competence, but it is argued that the state should be tracking a broader category of relationships than just those involving the exchange of marital consent. It is suggested that all marriage law should be repealed, and replaced by an Australian-style law of <jats:italic>de facto</jats:italic> relationships. If the law deals with <jats:italic>de facto</jats:italic> relationships there is no need for it to be involved with the institution of marriage as well, and that institution can be left to flourish outside the state's grasp. The article goes on to respond to some possible objections.</jats:p>

Item Type:	Article
Uncontrolled Keywords:	cohabitation, civil partnership, de facto relationship, God, marriage, state
Divisions:	Faculty of Humanities and Social Sciences > School of the Arts
Depositing User:	Symplectic Admin
Date Deposited:	13 Jan 2022 15:21
Last Modified:	18 Jan 2023 21:16
DOI:	10.1017/S0956618X22000011
Open Access URL:	https://doi.org/10.1017/S0956618X22000011
Related URLs:	Author Publisher
URI:	https://livrepository.liverpool.ac.uk/id/eprint/3146462