Historically, the family was viewed in the private sphere, which is compatible with the notion of private ordering, defined as the right of individuals ‘to organise their lives as they wish, free from state and court intervention’ (Cretney, 2003). This proposes that individuals are not granted unlimited freedom and simply left alone, but that ‘they should have the right to create legal obligations’ (Cretney, 2003).

The family, and the norms which govern it, are now interwoven throughout society. The family is a seamless web with infinite connections to other areas of law. The courts can intervene at any stage - they possess the power to govern entry, dissolution and division of assets after divorce, arguably leaving little room for private ordering. The courts undoubtedly provide resolution and protection, but one may question the desirability of intervention, given its arguable erosion of autonomy. Indeed, ‘family law is a site for highly visible and important contests between state regulation and individual or family autonomy’ (Stake, 1998). This essay will examine the transformation of laws surrounding marriage, as well as the surrounding debates which have encouraged such change. Ultimately, it will endeavour to provide an answer to the question of where the courts currently strike a balance, and where they should, in the weighing of the scales.      

Marriage was defined in Hyde v Hyde [1866] as ‘the voluntary union for life of one man and one woman to the exclusion of all others’. However, perhaps this is better considered as more of an aspiration, mirroring the law’s desire to uphold the ideal, as opposed to the reality. Nevertheless, the ‘voluntary union’ aspect remains true, clearly invoking the presumption of consent. Consent is defined as giving ‘permission for something to happen’ (Oxford Dictionaries), yet this simplicity is deceptive. It evokes a battle between individual autonomy and the prevention of harm, as well as its role amongst the complex interplay of issues such as capacity, duress and misrepresentation. Clearly, consent is at the heart of marriage, reiterated by its embodiment in the Universal Declaration of Human Rights, The Marriage Act 1949, Matrimonial Causes Act 1973 and the Human Rights Act 1998 (Gill and Anitha, 2009). This serves to reveal the true extent of state intervention to ensure that consent is properly obtained. However, does this justify the apparent legal paternalism, given the protective measures the courts have implemented in its search for fairness?

While there has been a shift from seeing marriage as a status to now seeing it as a contract,, there are clearly remnants of it being viewed as ‘a matter of status’, (Hale, 2011) evinced by the paternal role adopted by the courts. They are reluctant to ‘shed’ this role, again highlighting the perpetual conflict between autonomy and protection.  When faced with what appears to be a forced marriage ‘the court must not hesitate to use every weapon in its protective arsenal’ (Cretney, 2003). This protection has been heightened since the creation of the Forced Marriage (CP) Act 2007, constructing a barrier to private ordering as the courts are ready to immediately strike down a marriage. 

Furthermore, on June 16, 2014, sections 120 and 121 of the Anti-social Behaviour, Crime and Policing Act 2014 became new law. They introduced an offence that will apply to a person who intentionally forces a person to enter into marriage, believing the person does not consent, or a person who uses deception for the purpose of forcing them into marriage (CPS, 2014). This arguably sends ‘a powerful message’ (BBC News, 2014). It further protects against the potential danger of ‘subtle, insidious, pervasive and powerful’ (Hirani v Hirani [1982] 4 FLR 332) influences, particularly in cases where ‘very little pressure may suffice to bring about the desired result’ (Hirani v Hirani [1982] 4 FLR 332). Indeed, ‘without a real prospect of the force of law being wheeled in to assert or defend the legal entitlements of the vulnerable party, private ordering may quickly descend into anarchy’ (Miles, 2012). However, this new law is not without controversy. There are concerns that the prospect of an individual’s family facing criminal charges will deter victims from reporting the forced marriage. Indeed, a founder of Jeena International stated that while a change in the law was a step in the right direction, more had to be done to educate people about forced marriage (Davidson).

Consent is certainly at the heart of marriage, as evidenced in Re Estate of Park (deceased), Park v Park. Indeed, ‘in recent years the High Court has demonstrated its willingness to put protective measures in place…’ (Probert, 2008). This leads one to question the justification of rendering a marriage voidable when capacity is doubted. Surely, if consent is in doubt, the marriage should be deemed void, simply ‘to deny that this was a marriage in the eyes of English law’ (Probert, 2008). Probert argues that the ‘importance of the law of nullity lies less in the undoing of marriages […] than in the preventing of marriages from going ahead in the first place’ (Probert, 2008) and ‘while there is clearly a need for the law to protect the vulnerable… courts should not lose sight of the wishes of the parties involved’ (Probert, 2008). Indeed, in Sheffield City Council v E EWHC 2808 (Fam), it was stated that ‘the court is concerned with her capacity to marry, not with the wisdom of her marriage in general or her marriage in particular’. Munby J also warns against, and purports the need to establish a delicate balance – if the test for capacity to marry is set to high ‘lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled’ (Sheffield City Council v E). Nevertheless, surely court intervention in such decisions is still unjust as it demonstrates a denial of liberty. But ‘the test for capacity to marriage therefore appears to be relatively easy to satisfy’ (Gaffney-Rhys, 2006), suggesting that the courts will seldom prevent individuals from marrying, a possible triumph for private ordering. 

However, recent cases demonstrate the opposite - an increasing willingness to grant  preventive orders, as illustrated in X City Council v MB, NB and MAB [2006] EWHC 168 (Fam), M v B, A, and S [2005] EWHC 1681; [2006] 1 FLR 117, and Re SA [2006] EWHC 2942 (Fam). In Re SA, the judgment in Re G (an adult) (mental capacity: court's jurisdiction) [2004] EWHC 2222 (Fam) was referred to, where it was held to be a ‘sad failure were the law to determine that I have no jurisdiction to investigate… as to G’s best interests’. But this is precisely what Munby J held the courts would not do. The courts appear to be going beyond conducting tests to determine capacity and are venturing into the realm of determining the individual’s ‘best interests’. This surely constitutes unwarranted intervention. Ultimately, ‘over himself, over his own body and mind, the individual is sovereign’ (Mill, 2008), as is perhaps exemplified by the Human Rights Act 1998, exhibiting a shift to the imperative nature of individual rights. Is it truly the role of the courts to make a moral judgment under the mask of legal reasoning? Instead, it appears to be a distortion of the judicial role. If couples truly want to marry, the fact that the law is constructing obstacles making it more difficult, or even preventing them from doing so, will surely constitute the unnecessary intrusion that Cretney notes and fears. 

To conclude, a balance may be achieved by envisaging marriage as a contract - recognition that marriage is a private matter between the two parties involved, but that there is a legitimate state interest. This recognises that individuals are free, autonomous beings, yet justice dictates that where undue influence, duress or misrepresentation is present, the law should intervene. This will ensure that the basic requirements of capacity and consent are complied with (Poulter, 1986) and that private ordering does not descend into ‘anarchy’ (Miles, 2012). Nevertheless, courts must ensure that the enactment of these new laws does not transform their role into that of paternalistic figures. 


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