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4 ACARELAR 1 (2023)

handle is hein.journals/afncyadr4 and id is 1 raw text is: IZUNWA: Voluntariety in the Contract of Marriage and the Challenge of Duress VOLUNTARIETY IN THE CONTRACT OF MARRIAGE AND THE CHALLENGE OF DURESS* Abstract For any human project including marriage, to be of value, it ought to proceed from the voluntary dispositions of the free subject. This means that for any act to be properly a human undertaking, it must have been done with concrete awareness, willingness and deliberate consent of those involved. Predicated on this proposition, the Christian- Canonical Jurisprudence which informed the dictum of Lord Penzance in the celebrated case of Hyde v Hyde, made voluntariness of the parties to marriage a sine qua non to any valid celebration. But in the ancient and modern times, the issue of 'duress' has always operated to destroy the element of voluntariety in marriage. Whenever this happens, the consequence by law and policy is nullity. Using the doctrinal method of inquiry, this paper is structured to examine the concepts of voluntariety and 'duress' as they affect the marriage contract. It finds that despite the trite positions of the laws on this, people in their increasing numbers still enter into marriage under duress activated by different persons and under various situations. The instant paper recommends more than else a Christian pastoral engagement of the problem, through value driven pastoral orientations, and robust enforcement of available legal provisions against the operation of duress for marriages across all jurisdictions. Keywords: Voluntareity, Duress, Contract of Marriage, Consent 1. Introduction Marriage is a universal institution which is recognized and respected all over the world. It is usually governed by the social and religious norms of the society. Essentially, 'marriage, as it were, is about the union of a man and a woman for the purposes of living together in a community of love and having and rearing children.1 According to Osborn's Concise Law Dictionary, the fundamental ethical component of the contract of marriage lies in its voluntariety. Hence, it is a 'voluntary union for life of one man and one woman to the exclusion of all others... it is this voluntariness which forms the bedrock of the contract of marriage, precisely as its formal cause, that is the victim of duress among other vitiating elements. Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. It invokes a sense of intimidation or illegitimate pressure against a party to the marriage.3 In its operation, it compromises the entire idea of voluntariety, thus exposing the vulnerable party to exploitation during the life of 'the marriage'. It often comes by way of external pressures or emotional coercion activated and sustained by either of the parties against the other, parental/family pressures, socio-cultural norms and expectations as well as economic susceptibilities. Note that of all the elements of the marriage contract outlined by Lord Penzance in his definition of marriage namely; voluntariety, monogamity, heterosexuality, indissolubility and exclusively,4only the element of voluntariety is universally accepted and defended. No known modern state, religion or culture espouses force/duress in the institution of marriage. It is one of the areas in which the principles of autonomy and self determination are critically needed so as to make the common life of two persons possible. For 'if both or all partners get to be in charge of their own lives, then you have a greater foundation for making room for each other and growing together In the progress of this paper, the relevance of voluntariness in human actions will be examined with particular emphasis on its consequences for the marriage contract. Furthermore, the vitiating element of duress and how it destroys voluntariety will be considered alongside some contentious issues surrounding the concept itself in global jurisdictions. The paper will end with few recommendations that will strengthen the institution of marriage against the vitiating 'assault' of duress and kindred forces. 2. The Question and Relevance of Voluntariness in Human Actions Without doubt, human beings are not automatons; they are moral entities free from all forms of psychological determinations. Precisely as free moral agents, all human acts, actus humanus,6 properly so called are voluntary acts, arising from an intellectual election of object and oriented towards an entelechy - end or purpose. This requires knowledge, awareness, willingness, considered decision and deliberated accent of the will. According to Dario Composta, what appears as moral in human acts is only that which is guided by intelligence and will, or, in other terms, by understanding and willing, or also by awareness and consent. Their flux constitutes the voluntary.7 Inferentially, voluntary acts require the concomitant presence by B: knowledge (awareness of the goal) and A: interior *By Maurice Okechukwu IZUNWA, PhD (Phil), MA (Phil), MA (Rel), LLM, LLB, BL, Senior Lecturer, Department of International Law and Jurisprudence, Faculty of Law, Nnamdi Azikiwe University, Awka, Nigeria. ' M. O. Izunwa, 'Statutory Marriage and Contemporally Challenges: A Contextual Re-reading of some Modern Options' [2010](1)(2) Confluence Journal of Private and Property Law, 75. 2 S Bone (ed.), Osborn 's Concise Law Dictionary (9th edn, London: Sweet and Maxwell, 2001) p. 246. ' Cf. Ludmer v. Ludmer, 2013 ONSC 784, [2013] O. J. No. 699. 4 Hyde v Hyde (1861-1873) ALL ER 175. s'Its' Your Choice: Personal Autonomy in a Relationship' <https://genderminorities.com2021/03/11/autonomy-in-a- relationship/>accessed on 17/07/2023. 6 Human act(s), are completely different from Acts of Man, which are - those gestures and actions performed by a person, but not in a specifically human way. Examples include crying in a dream or acting under the effect of drugs or hypnosis. ? D Composta, Moral Philosophy and Social Ethics (India: Bangalore Theological Publications, 1988) p.14. 1

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