''Hyde v Hyde'' is a

landmark case Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly u ...

of the English Court of Probate and Divorce. The case was heard 20 March 1866 before

Lord Penzance James Plaisted Wilde, 1st Baron Penzance, (12 July 1816 – 9 December 1899) was a noted United Kingdom, British judge and rose breeder who was also a proponent of the Baconian theory that the works usually attributed to William Shakespeare were ...

, and established the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

definition of marriage.

Facts of the case

John Hyde, an English

Mormon Mormons are a religious and cultural group related to Mormonism, the principal branch of the Latter Day Saint movement started by Joseph Smith in upstate New York during the 1820s. After Smith's death in 1844, the movement split into several ...

who had been ordained to the priesthood of

the Church of Jesus Christ of Latter-day Saints The Church of Jesus Christ of Latter-day Saints, informally known as the LDS Church or Mormon Church, is a Nontrinitarianism, nontrinitarian Christianity, Christian church that considers itself to be the Restorationism, restoration of the ...

(LDS Church), brought an action of divorce against his wife, Lavinia, for

adultery Adultery (from Latin ''adulterium'') is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal ...

. He had left the LDS Church and began to write and publish anti-Mormon material, a move that caused him to be

excommunicated Excommunication is an institutional act of religious censure used to end or at least regulate the communion of a member of a congregation with other members of the religious institution who are in normal communion with each other. The purpose ...

from the LDS Church. His wife left him, and subsequently remarried in

Utah Territory The Territory of Utah was an organized incorporated territory of the United States that existed from September 9, 1850, until January 4, 1896, when the final extent of the territory was admitted to the Union as the State of Utah, the 45th state. ...

, which was the basis for his suit for divorce. The court denied his petition on the grounds that the relationship he had entered into did not constitute a marriage under the law of England.

Judgement

Citing '' Warrender v. Warrender'', Lord Penzance found that institutions in foreign countries (including marriage) cannot be considered as valid under

English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...

, unless they resemble the equivalent English institution. With respect to marriage, English law could therefore not recognise either

polygamy Crimes Polygamy (from Late Greek (') "state of marriage to many spouses") is the practice of marrying multiple spouses. When a man is married to more than one wife at the same time, sociologists call this polygyny. When a woman is married ...

concubinage Concubinage is an interpersonal and sexual relationship between a man and a woman in which the couple does not want, or cannot enter into a full marriage. Concubinage and marriage are often regarded as similar but mutually exclusive. Concubin ...

as marriage. Similarly, he found that cultural traditions of which the court had no knowledge could not form the basis for a court decision. The court dismissed John Hyde's claim. The case established the common law definition of marriage. Lord Penzance pronounced: :"I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others".

Significance

This definition has been an influential consideration in a number of recent landmark decisions, including ''

Same-Sex Marriage Same-sex marriage, also known as gay marriage, is the marriage of two people of the same Legal sex and gender, sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being ...

'', '' Ghaidan v Godin-Mendoza'', '' Wilkinson v. Kitzinger and Others'' and the ACT Same Sex Marriage case in Australia. In addition, the phraseology has had a direct influence on numerous pieces of

legislation Legislation is the process or result of enrolled bill, enrolling, enactment of a bill, enacting, or promulgation, promulgating laws by a legislature, parliament, or analogous Government, governing body. Before an item of legislation becomes law i ...

, including the

Civil Partnership Act 2004 The Civil Partnership Act 2004 (c 33) is an Act of the Parliament of the United Kingdom, introduced by the Labour government, which grants civil partnerships in the United Kingdom the rights and responsibilities very similar to those in civil ...

(UK), the

Matrimonial Causes Act 1973 The Matrimonial Causes Act 1973 (c 18) is an Act of Parliament of the United Kingdom governing divorce law and marriage in England and Wales. Contents The act contains four parts: # Divorce, Nullity and Other Matrimonial Suits # Financial Reli ...

(UK), the

Marriage (Scotland) Act 1977 Marriage in Scotland is recognised in the form of both civil and religious unions between individuals. Historically, the law of marriage has developed differently in Scotland to other jurisdictions in the United Kingdom as a consequence of the di ...

, and the Australian Marriage Act of 1961. Since 2014, when the

Marriage (Same Sex Couples) Act 2013 The Marriage (Same Sex Couples) Act 2013 (c. 30) is an Act of the Parliament of the United Kingdom which introduced same-sex marriage in England and Wales. Background Civil partnerships were introduced in the United Kingdom in 2004, allowi ...

(UK) came into force allowing

same-sex marriage Same-sex marriage, also known as gay marriage, is the marriage of two people of the same Legal sex and gender, sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being ...

s in England and Wales, the common-law definition of marriage is now

moot Moot may refer to: * Mootness, in American law: a point where further proceedings have lost practical significance; whereas in British law: the issue remains debatable * Moot court, an activity in many law schools where participants take part in s ...

, as did the 2017 amendment to the Australian Marriage Act 1961 by

Marriage Amendment (Definition and Religious Freedoms) Act 2017 The ''Marriage Amendment (Definition and Religious Freedoms) Act 2017'' (Cth) is an Act of the Parliament of Australia, which legalises same-sex marriage in Australia by amending the '' Marriage Act 1961'' to allow marriage between two persons o ...

Criticism

The heavy reliance on Lord Penzance's definition of marriage has been criticised on two distinct grounds. First, the original statement was an

obiter dictum ''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "other things said",''Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, a remark in a legal opinion that is "said in passing" by any judge or arbi ...

, meaning it did not establish a binding

precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...

. Second, this dictum was a defence of marriage and not a definition of it.Rebecca Probert, "''Hyde v Hyde'': Defining or Defending Marriage", ''Child and Family Law Quarterly'', vol. 9. no. 3, 2007, pp. 322–336.

References

{{reflist

External links