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 thefree subject. This means that for any act to be properly a human undertaking, it must have been done with concreteawareness, 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, madevoluntariness 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 toexamine the concepts of voluntariety and ‘duress’ as they affect the marriage contract. It finds that despite the tritepositions of the laws on this, people in their increasing numbers still enter into marriage under duress activated bydifferent persons and under various situations. The instant paper recommends more than else a Christian pastoralengagement of the problem, through value driven pastoral orientations, and robust enforcement of available legalprovisions against the operation of duress for marriages across all jurisdictions.