CONCEPT as a voluntary union for life between one


Practically all the countries of the world agree that
marriage is a union between man and woman. Beyond this there are difference. In
the Western countries marriage is considered as a contract, and a monogamous
union, through Roman Catholic church (despite the recent Italian legislation
conferring power of dissolving marriage on civil courts) still insists that
marriage is a sacrament and an indissoluble union. The Muslim world has all
along considered marriage as a civil contract, through has, at the same time,
recognized limited polygamy.1 At one time in the East-among Hindus and
Buddhists- marriage was considered as a sacrament and indissoluble union; among
both the people unlimited polygamy was recognized. Today the Buddhists and
Hindus no longer recognize polygamy. The Chinese Buddhists consider their
marriage as a contract.2Among Hindus marriage is something in between a
sacrament and a contract.3  

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English Law Under the English domestic law marriage is
defined as a voluntary union for life between one man and one woman to the
exclusion of all others. English courts have adopted this very concept of
marriage to the conflict of laws cases, and this has led to much hardship and
injustice in respect of polygamous marriages.  

In Hyde v. Hyde4 Lord Penzence observed : “I conceive
that marriage, as understood in Christianity, may for this purpose be defined
as the voluntary union for life of one man and one woman to the exclusion of
all others.” Then, it seemed logical for him to express the following view:
“Now, it is obvious that the matrimonial law of this country is adapted to the
Christian marriage, and is wholly inapplicable to polygamy.” In this case a
husband of a potentially polygamous Mormon marriage, performed at Utah,
petitioned for divorce in an English Court. After renouncing his faith the
husband became a Minister of a dissenting chapel at Derby and the wife remarried.
The petition was dismissed because the English courts were not prepared to
accord recognition to polygamous unions, and they considered that their
matrimonial jurisdiction could not be made available to such marriages.


 In Harvey v.
Farnie5 the court of Appeal took the extreme position that polygamous marriages
could not be recognized for any purpose. Taking the view the nature and
incidents of marriage are determined by the lex loci celebration  and the characterization of marriage as to
whether it is monogamous or polygamous is determined by the lex fori, the
English court held  that even if there
was a possibility of converting a polygamous marriage into a monogamous
marriage, the potentially thus be recognized