Tuesday, September 21, 2004

Marriage for two, or three, or four?

Alastair Nicholson is at it again. Up to July of this year he was the chief justice of our Family Court. He held the post despite being a virulently anti-family liberal. (For instance, in 1997 he announced that a 40% divorce rate was not "a matter of great alarm" because it was part of the "natural development of society".)

Now, barely retired, he has written a newspaper column on the issue of gay marriage. He is furious that a new law has been passed which prevents homosexual marriage. He argues that,

The definition (of marriage) the bill adopts reflects that by Lord Penzance in Hyde vs Hyde and Woodmansee in 1866: "The voluntary union for life of one man and one woman, to the exclusion of all others."

It is worth noting that Lord Penzance's definition was inaccurate at the time that he gave it and remains inaccurate today.

It is difficult to understand how, even in 1866, marriage could have been defined as a union for life after the passage of the Divorce and Matrimonial Causes Act in England in 1857. The latest divorce figures also make clear what a nonsense it is to refer to marriage as a union for life today.

Similarly, since the concept of matrimonial fault has been abolished by the Family Law Act 1975 and, in particular, that adultery is no longer a ground for divorce, it is difficult to argue that a modern marriage necessarily excludes all others. All this seems to have escaped the Government and the Opposition.

At least Nicholson isn't trying to lull us with the soothing argument that homosexual marriage won't change anything about traditional marriage. He's trying the exact opposite approach. He's telling us that traditional heterosexual marriage has already been abolished as a fact of law. That marriage now can't be considered to be a union for life, nor can it even be considered an exclusive union between two people. It's an open institution, in Nicholson's opinion, in which pretty much anything is possible, including same sex marriage.

Nicholson makes it clear, further on in the article, that he thinks that people who marry are a bit old-fashioned and that de facto relationships are the trend for the future. He also rejects the idea that it's better for children to have both a mother and father.

All this from someone who is not just some fringe radical, but who was a long-serving chief justice of the Family Court. Alastair Nicholson's liberalism has taken him not just to an acceptance of homosexual marriage, but to the effective abolition of marriage itself - in which even the idea of marriage as a union of two people is abandoned.

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