The nature of marriage

Quite apart from its abstract meaning as the social institution of marriage, "marriage" has two distinct meanings: the ceremony by which a man and woman become husband and wife or the act of marrying, and the relationship existing between a husband and his wife or the state of being married1. This distinction largely corresponds with its dual aspect of contract and status.

Marriage as a Contract.- In English law at least, marriage is an agreement by which a man and woman enter into a certain legal relationship with each other and which creates and imposes mutual rights and duties. Looked at from this point of view, marriage is clearly a contract. It presents similar problems to other contracts—for example, of form and capacity; and like other contracts it may be void or voidable. But it is, of course, quite unlike any commercial contract, and consequently it is sui generis in many respects. In particular we may note the following marked dissimilarities:

· the law relating to the capacity to marry is quite different from that of any other contract.

· a marriage may only be contracted if special formalities are carried out.

· the grounds on which a marriage may be void or voidable are for the most part completely different from those on which other contracts may be void or voidable.

· unlike other voidable contracts, a voidable marriage cannot be declared void ab initio by repudiation by one of the parties but may be set aside only by a decree of nullity pronounced by a court of competent jurisdiction.

· a contract of marriage cannot be discharged by agreement, frustration or breach. Apart from death, it can be terminated only by a formal legal act, usually a decree of dissolution (or divorce) pronounced by a court of competent jurisdiction.

Marriage as Creating Status.—This second aspect of marriage is much more important than its first. It creates a status, that is, "the condition of belonging to a particular class of persons [i.e., married persons] to whom the law assigns certain peculiar legal capacities or incapacities" 1.

In the first place, whereas the parties to a commercial agreement may make such terms as they think fit (provided that they do not offend against rules of public policy or statutory prohibition), the spouses' mutual rights and duties are very largely fixed by law and not by agreement. Some of these may be varied by consent; for example, the spouses may release each other from the duty to cohabit. But many may not be altered; thus the wife may not contract out of her power to apply to the court for financial provision in the event of divorce.

Secondly, unlike a commercial contract, which cannot affect the legal position of anyone who is not a party to it, marriage may also affect the rights and duties of third persons. Thus a husband has an action against anyone who by committing a tort against the wife thereby deprives him of her consortium, and it is not open to the tortfeasor to argue that the marriage is res inter alios acta.

Definition of Marriage.—The classic definition of marriage in English law is that of Lord Penzance in Hyde v. Hyde[6].

"1 conceive that marriage, as understood in Christendom, may ... be defined as the voluntary union for life of one man and one woman to the exclusion of all others."

It will be seen that this definition involves four conditions.

First, the marriage must be voluntary. Thus, as we shall see[7], it can be annulled if there was no true consent on the part of one of the parties.

Secondly, it must be for life. If by marriage "as understood in Christendom" Lord Penzance was referring to the view traditionally taken in Western Europe by the Roman Catholic Church and some other denominations, his statement is of course unexceptionable. But it does not mean that by English law marriage is indissoluble: divorce by judicial process had been possible in England for over eight years when Hyde v. Hyde was decided. The gloss put on the dictum by the Court of Appeal in

Nachimson v. Nachimson[8] —that it must be the parties' intention when they enter into the marriage that it should last for life—is unsatisfactory. If, say, two people enter into a marriage for the sole purpose of enabling a child to be born legitimate, intending never to live together but to obtain a divorce by consent at the earliest opportunity, it cannot be doubted that their union is a marriage by English law. The only interpretation that can be put on Lord Penzance's statement is that the marriage must last for life unless it is previously determined by a decree or some other act of dissolution[9]. If one may draw an analogy (perhaps not very happy) from the law of real property, marriage must resemble a determinable life interest rather than a term of years absolute.

Thirdly, the union must be heterosexual.

Fourthly, it must be monogamous. Neither spouse may contract another marriage so long as the original union subsists.

Travel

Leaving aside the obvious about A-to-B and wheels versus wings, the defining development of travel today is that the sheer volume of travelers, combined with the extraordinary amount of choice in terms of how to travel, means that there is a lot more to travel than simply getting somewhere. Now more than ever, most forms of travel involve a certain degree of self-definition - travelers have to decide just what kind of experience they want, or what kind of people they want to be for the duration of the journey.

Only an airline could get away with the blunt assertion that homo travelercomes in no more than three varieties (First, Business, and Economy). The most casual glance around any airplane will instantly show that the distinction is misleading. The back end of an airplane is as full of people traveling to make their living as the front end is full of business people taking it easy and living it up. The difference in pricing on airplane seats alone can mean that a full-fare, front-of plane passenger is spending ten times as much as a more parsimonious fellow-passenger seated somewhat nearer the tail fin. Of course, more often than not the "choice" in that case comes down to whether the individual or the company is paying; but even then there is a surprising degree of personal choice, otherwise the frequent-flyer program (FFP) would never have been invented. FFPs are an elegant form of bribery, and like most forms of bribery are intended to ensure that individuals do something they would otherwise not have done - in this case, stay loyal to one airline. To cynics, the very existence of FFPs is proof that there are better deals to be done on other airlines. Indeed, the advent of no-frills airlines shows that even business flyers are prepared to forgo their Air Miles, along with seat numbers and individual non-dairy creamer sachets, when the alternative is cheap, no-fuss flying.

A growing number of business people are eschewing the airplane altogether in favor of the new generation of high-speed trains that may have similar total journey times, but that allow a traveler to spend more of that time seated in front of a table on which a laptop actually fits. Even the hub system, the backbone of US and transatlantic flying, is being challenged by the advent of newer airlines, smaller regional airports, and Boeing's dream of smaller, faster, direct-flying airplanes called sonic cruisers. Millionaire Dennis Tito has gone one stage further in the redefinition of air travel by making space a destination for the fare-paying tourist. As fast as one branch of travel pushes into the new millennium in the Olympian search for further, faster, higher, so another kind of tourism grows, looking for a slower and more sedate means of pottering around the planet. Hence the flourishing cruise-ship culture, and even the reappearance of Zeppelins over Germany (currently offering pleasure jaunts over Lake Constance).

Meanwhile, back on earth, travelers with their feet on the ground are becoming increasingly aware that their passage through countries and countryside is achieved at the cost of a huge impact on the environment and on local culture. Historically one of the most fundamental arguments about the definition of travel has been the distinction between the traveler and the tourist. Travelers have always seen themselves as occupying the high ground here: the traveler being a more noble creature, heroic even, while the tourist is a herd animal and the result of a human form of mass production spewed from the maw of a giant industry (one of the world's biggest). In practice the line between traveler and tourist often seems to come down to the fact that other people are tourists and we ourselves are of course travelers.

One line of thought is that travelers are those who go to foreign lands or locations with a view to enjoying and even immersing themselves in their foreignness. Tourists, on the other hand, are looking for a change of scenery but expect to take their own familiar world with them, complete with its culture and creature comforts. It's an attractive definition, but one that fails to explain business travel. One of the defining hallmarks of business travel as an industry is its apparent dedication to cushioning the traveler not only from his or her surroundings, but also from fellow travelers and certainly, heaven help us, from the tourists. Incidentally, it's a curious fact, but never, and I mean never, do we hear of "business tourism," despite the number of conferences in any industry you care to choose that take place each year in Hawaii, Bangkok, or Bermuda, although companies' headquarters and management are based in Idaho or Ireland.

All of that is changing, however, as concepts such as adventure tourism and ecotourism come to the fore.

Adventure and activity tourism have arisen in response to the growing desire for travel to involve more than sun, sea, sand, and shopping. Today's travelers are scarcely content unless they are given the opportunity to windsurf, hike up hills, submerge themselves in scuba diving, or kayak till they drop. Once travelers visited such spots as Merida, Venezuela simply to see the Andes. Now Merida has been transformed into an adventure base where rock climbing, paragliding, mountain biking, and horse riding have shouldered their way on to the tourist agenda and into the local economy.

The Earth Summits at Rio and Kyoto have monopolized the news agenda. There is growing awareness of the fragility of the globe we trot, and individuals and industry alike are waking up to the need for tourism to be sustainable if we are to continue to enjoy travel in ten or twenty years' time. Ecotourism and ecotravel (the two words are used pretty much synonymously) is perhaps the clearest example of the way in which travel is now as much about self-definition as it is about transportation. In particular, ecotourism asks whether travelers prefer to see themselves as part of the problem or as part of the solution. It shifts the focus away from the idea of tourists taking their own culture with them, and instead seeks to turn them into a means of preserving the culture of somewhere else. True ecotourism entails education of locals and tourists alike, as well as economics that benefit and preserve the location in question. Fervent supporters of ecotourism would argue that it is the best hope we have for maintaining the ecology of threatened ecosystems, of ensuring that flora, fauna, and folk are all still there for future generations.

From the point of view of an observer of travel, it also brings about one of the biggest reversals in the nature of travel since Thomas Сook invented the package tour. Ecotourism educates the tourist. Ecotourism can even engage the tourist in work to survey and maintain the environment. Ecotourism transforms the tourist into a guardian of the globe. It has finally turned the whole traveler/tourist debate on its head by clearly handing the high moral ground to the tourist - a redefinition truly as fundamental as Mr Tito's brief foray beyond the drag of gravity.