The Tribune

EDITOR, The Tribune.

There is talk of a coming change to our marriage laws. To the extent the new law criminalises non consensual sex within marriage, it would in our view, be unconstitutional for two reasons. First, Article 22 Constitution protects freedom of conscience. This includes we say, the right to be married in accordance with one’s religious beliefs, especially where the belief was practised at the time the Constitution was passed. Since Christians and Jews are married on terms that exclude marital rape, a law criminalising non consensual sex within marriage may be seen as an attack on them.

Second, Article 27 Constitution grants to individuals nation-wide freedom from the compulsory acquisition of property without compensation. So if Parliament imposes a legal separation on the public (which is what results when a wife is able to claim her husband raped her) in place of a full marriage, it must compensate husbands for the diminution of that marriage. This is so even though marriages are now solemnised almost exclusively under licence, lending the appearance that Parliament can change the terms of marriage at will without compensation.

The Article 22 cannot be fully appreciated without some knowledge of the Bible. As the term “marriage” is rarely used in scripture, we turn to Gen 2 where the concept first appears. In Gen 2:1.5-22 God takes a rib out of Adam, forms a female and brings her to him. Upon seeing her, Adam declares, “This is bone of my bone and flesh of my flesh therefore she shall be called woman.” Gen 2:23, 24 continues: “And for this cause shall a man leave his father and mother and cleave unto his wife and the two shall be one flesh.” Jesus repeats this in Mark 10:7, 8 only adding in verse 9: “What God has joined together” (ie the one flesh) “Let no man put asunder.” Biblically then, a marriage is between man and wife where the two, male and female become one flesh. Now, if the two are one flesh as Jesus says, how can one rape the other? Is it possible for a man to rape himself? States that criminalise non-consensual sex within marriage risk appearing both foolish and in opposition to Jesus. Now someone may say, “None of this matters. The law prohibits bringing a lawsuit to recover for loss of conjugal rights so no compensation is possible.” It is true that the Matrimonial Causes Act prohibits lawsuits seeking damages where a spouse leaves for someone else. But it also authorises divorce from the departing spouse in those circumstances. Thus, a jilted husband must now divorce and remarry rather than bring a lawsuit to recover damages. In our view, a law converting the biblical marriage into a legal separation can be challenged constitutionally as no prohibition existed prior to the Constitution banning lawsuits which challenge Government’s ceasing of biblical marriages nationally.

On the Article 27 point, the Government may wish to argue that the public has no right to compensation as marriages today are conducted almost exclusively under the authority of a licence from the Registrar General. As such, individuals are married by licence and Parliament is able to legislate the terms of marriage without regard to the Constitution. We say this argument, although formidable on its face, does not reflect the true facts. The Marriage Act continues to allow marriages in The Bahamas to be conducted under the marriage officer’s certificate. In that case, there has to be an announcement in Church for three consecutive weeks and a notice must be published in a conspicuous place in the Church announcing the upcoming wedding. Once all the formalities have been met, the marriage officer issues a Certificate of Banns and the couple can be married. In this case, the couple are married clearly as of right. When a couple is married pursuant to a licence, there is no public advertisement and yet the terms of the marriage contract are exactly the same as that obtained under a Certificate of Banns. There is nothing in any of our laws that allows two types of marriage contracts to exist here. We conclude then, that marriage contracts are all by right in The Bahamas. The licence is issued to allow a marriage to proceed without the need for public advertisement, nothing more. Therefore, in our opinion, all married men will have to be compensated if this change is made.

The law recognises that marriage is not to be a haven for violent, abusive men. It allows wives violated by their husbands to apply to Court for a legal separation or divorce without bringing an end to marriages in general. A balance has been struck between the public good and protection of the woman. That public good is seen in Genesis 6 where God condemns all flesh, terminating all life on earth save for Noah. But Noah marries a woman condemned to death and the two being one flesh, both live. Further, the children of the marriage are not condemned as their mother was, but graced with life as is their father and they live. When the sons get married, their condemned wives being one flesh with them also live. Now if God has shown in his word that in marriage he overlooks the faults of a spouse for the sake of their virtuous husband (or wife), is it not sensible for government to preserve that?

AL LOPEZ

Attorney-at-Law

May 31, 2023