When is a Polygamous Marriage Not a Polygamous Marriage ?
| Author | Rhona Schuz |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02542.x |
| Date | 01 September 1983 |
| Published date | 01 September 1983 |
Sept. 19831
NOTES
OF
CASES
653
private law duty in
Anns
a
plaintiff must first show
excess
ofpower:
in
Cocks,
an individual must first show a
valid and favourable
exercise of
power. This apparent contradiction may be explained as a difference
in
context
or
issue,
or
by pointing out the different nature of the torts
involved. In reality, the difference is one of approach rather than effect.
The public law/private law divide in both cases places a hurdle in the
path of an individual seeking private law redress from public authorities,
and thus helps consolidate and protect administrative powers from
obligations owed to, and enforceable by, individuals.
Conclusion
In
O'Reilly
and
Cocks
the House of Lords has taken an important step
towards consolidating litigation against public authorities in a
specialised High Court jurisdiction based on judicial review. The
consensus amongst their Lordships highlights the importance attached
by the higher judiciary to this development.
I
have argued that a prime
function of this consolidation is to maximise judicial control
over public law litigation and thereby enable the judiciary to regulate
its and the law's role within government.
If
Lord Diplock's lead is
followed, judicial decision-making will become more overtly pragmatic,
with the need to reason from legal principle and precedent declining.
This does not imply that decision-making
is
to become more open,
clear, rational or accessible. On the contrary, it
will
mean that academics
and practitioners will need a more rigorous appreciation and under-
standing of hidden factors
:
the underlying concerns, inarticulated
premises of, and structural pressures operating on judges and the
judiciary. MAURICE
SUNKIN*
WHEN
IS
A
POLYGAMOUS MARRIAGE
NOT
A
POLYGAMOUS MARRIAGE?
SECTION
11
(d)
of the Matrimonial Causes Act 1973, formerly section
4
of the Matrimonial Proceedings (Polygamous Marriages) Act
1972
has, ever since its enactment, been an obstacle to racial harmony in this
country. It provides
:
"
A
marriage celebrated after 31st July 1971 shall be void on the
following grounds only, that is to say
,
.
.
(d)
in
the case of a
polygamous marriage entered into outside England and Wales,
that either party was at the time of the marriage domiciled
in
England and Wales.
For
the purposes
of
paragraph
(d)
of this subsection a marriage
may be polygamous although at
its
inception neither party has
any spouse additional to the other."
*
Senior Lecturer in Law, Polytechnic of the South Bank.
I
wish to thank Carol Harlow,
Nigel Duncan and colleagues at the Polytechnic
of
the South Bank who kindly read and
commented on an earlier draft
of
this note.
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