Abstract
This article deploys and extends Ulrich Beck’s critique of ‘zombie categories’ (Beck in J Consum Cult 1 (2):261–277, 2001) to consider how conjugal relationships are brought into being before the law. The argument presented here is that sexual performatives relating to marriage—and especially, in this instance, consummation—continue to produce a kind of social-legal magic, even as the social flesh of their enactment is rotting. Rules concerning annulment relating to wedding ceremonies, consent, disclosure, and consummation demonstrate that certain frameworks of conjugality involve a kind of corporeal magic animating the privileged place of heterosexual marriage. Thus, rules and regulations pertaining to weddings continue to produce and protect heterogendered, sexually dimorphous bodies, even though this privileging is—or at least, is becoming—socially obsolete.
Similar content being viewed by others
Notes
Beck’s zombie categories are somewhat different from the living dead populating Henry A. Giroux’s marvellous (2010) essay. While I can see a place for Giroux’s ‘carnival of snarling creatures engorging elements of human anatomy’ (2010, 1) here, its relevance pertains mostly to marriage promotion programs in the United States, and their specious equation of marriage with social/moral benefits (see also Smart 2007, 13). These considerations are deferred for treatment in a future paper.
Purported marriages may be “valid, void, non-existent or presumed” (Probert 2002, 399). Distinctions are also made between ‘void’ and ‘voidable’ marriages, the complexities of which are not especially germane to the present discussion—suffice to note that a void marriage is deemed to have never constituted a marriage at all, while a voidable marriage is one that can be understood to have existed up until its nullification (Cretney and Masson 1997, 39–40; Goda 1967; Hall 1971; Passingham and Harmer 1985, 46).
At the time of writing, bona fide marriage has just been extended to gay and lesbian couples in England and Wales, and is already available in a number of the United States. In Australia, the idea that marriage might be appropriate for same-sex couples was explicitly rejected by the Howard government, but remains an issue of public and political debate (Marsh 2011).
Buckland v. Buckland (orse Cammilleri) (1965) p. 296.
Lee v. Lee (1928) 3 S.W. 2d 672.
On the significance of this move in more general terms, see Hindess (2007).
Re the Marriage of C. and D. (falsely called C.) (1979) 35 FLR 340.
It also speaks to the association of human reproduction and marriage, in that these provisions may be said to clear the ground for the procreation of healthy progeny. This reproductive aspect cannot be completely detached from the construction of marriage as ‘wholesome’, but neither does it stand as a simple synecdoche. If the desire for a healthy heir were sufficient explanation for these provisions, we might expect tests for fertility and requirements to disclose infertility to feature more prominently, (and perhaps we might expect to see requirements to disclose any inheritable disease, as well). As it is, inability to consummate has been available as a ground for annulment, but inability to conceive or impregnate has not.
Re Kevin (validity of marriage of transsexual) (2001) Fam CA 1074.
Similarly, under amendments set out in Section 12 and Schedule 5 of the Marriage (Same Sex Couples) Act, before an (already) married trans person can be issued a full gender recognition certificate, they must secure their spouse’s consent for the marriage to continue.
Marriage can be limited to different-sex couples without requiring consummation (as in Australia, see the Marriage Act 1961).
For more on the ‘unspeakable’ nature of same-sex performatives, see Brook (2000).
S.Y. v. S.Y. (orse W.) (1963) P. 37 (C.A.).
Corbett v. Corbett (1970) 2 All ER 33.
S.Y. v. S.Y. (orse W.) (1963) P. 48 (C.A.).
Baxter v. Baxter (1948). Times LR 8–11.
L. v. L. (1949) 1 All ER 141.
Relata are definable elements usually assumed to pre-exist their relation to other elements (Barad 2008). The relata of marriage include, for example, spouses, divorce, adultery, and so on.
Consummation is not the only instance where sexual performatives operate in marriage law. Historically, sexual performatives have worked not just to help establish a marriage (through consummation) but also to maintain marriage (through the work of ‘conjugal rights’), to break up marriage (through adultery and the operation of other matrimonial offences), and in repairing marriage (evident in the way that sex could ‘condone’ or forgive a matrimonial offence). For more on all of this, see my earlier work (Brook 2007).
References
Ahmed, Sara. 2006. Orientations: Toward a queer phenomenology. GLQ 12 (4): 543–574.
Anitha, Sundari, and Aisha Gill. 2009. Coercion, consent and the forced marriage debate in the UK. Feminist Legal Studies 17 (2): 165–184.
Arlington County Public Affairs Division. 2006. News release, January 31, 2006. http://www.arlingtonva.ua/NewsReleases/Scripts/ViewDetail.asp?Index=1958.
Austin, J.L. 1962. How to do things with words. London: Oxford University Press.
Bailey, Rebecca J. 1979. Family law—decree of nullity of marriage of true hermaphrodite who has undergone sex-change surgery. Australian Law Journal 53(9): 659–660.
Barad, Karen. 2008. Posthumanist performativity: toward an understanding of how matter comes to matter. In Material feminisms, ed. Stacky Alaimo and Susan J. Hekman, 120–154. Bloomington: Indiana University Press.
Barker, Nicola. 2006. Sex and the civil partnership act: the future of (non) conjugality? Feminist Legal Studies 14 (2): 241–259.
Barker, Nicola and Marie Fox. 2010. Commentary on Sheffield City Council v E [2004], Feminist judgment. In Feminist judgments: From theory to practice ed. R. Hunter, C. McGlynn and E. Rackley, 351–362. Oxford: Hart.
Bartlett, Peter. 2010. Sex and capacity: Introduction to special edition. Liverpool Law Review 31(2): 93–94.
Beasley, Chris. 2012. Making politics fleshly. In Engaging with Carol Bacchi: Strategic interventions and exchanges, ed. A. Bletsas and C. Beasley. Adelaide: University of Adelaide Press.
Beasley, Chris, Heather Brook, and Mary Holmes. 2012. Heterosexuality in theory and practice. New York: Routledge.
Beck, Ulrich. 2001. Interview with Ulrich Beck. Journal of Consumer Culture 1(2): 261–277.
Beck, Ulrich, and Elisabeth Beck-Gersheim. 2002. Individualization. London: Sage.
Bernard, Jessie. 1972. The future of marriage. London: Souvenir Press.
Bernstein, M., and R. Reimann (eds.). 2001. Queer families, queer politics: Challenging culture and the state. New York: Columbia University Press.
Brook, Heather. 1997. The troubled courtship of Gladys and Mick. Australian Journal of Political Science 32 (3): 419–436.
Brook, Heather. 2000. How to do things with sex. In Sexuality in the legal arena, ed. Carl F. Stychin and Didi Herman. London: Athlone Press.
Brook, Heather. 2007. Conjugal rites: Marriage and marriage-like relationships before the law. New York: Palgrave Macmillan.
Brook, Heather. 2011. ‘Die, Bridezilla, die!’ In Feminism at the movies, ed. Hilary Radner and Rebecca Stringer. New York: Routledge.
Brooks, Max. 2003. The zombie survival guide: Complete protection from the living dead. New York: Three Rivers Press.
Browne, K. 2011. By partner we mean…’: Alternative geographies of ‘gay marriage. Sexualities 14(1): 100–122.
Budgeon, Shelley, and Sasha Roseneil. 2004. Beyond the conventional family. Current Sociology 52 (2): 127–134.
Butler, Judith. 1990. Gender trouble: Feminism and the subversion of identity. New York: Routledge.
Chau, P.-L., and Jonathan Herring. 2002. Defining, assigning and designing sex. International Journal of Law, Policy and Family 16: 327–367.
Clarke, Victoria, Carole Burgoyne, and Maree Burns. 2013. Unscripted and improvised: public and private celebrations of same-sex relationships. Journal of GLBT Family Studies 9 (4): 393–418.
Coontz, Stephanie. 2005. Marriage, a history: From obedience to intimacy, or how love conquered marriage. New York: Viking.
Cott, Nancy. 2000. Public vows: A history of marriage and the nation. Cambridge, MA: Harvard University Press.
Cowan, Sharon. 2004. ‘That woman is a woman!’ The case of Bellinger v. Bellinger and the mysterious (dis)appearance of sex. Feminist Legal Studies 12 (1): 79–92.
Crane, P.S. 1948. Baxter v. Baxter and the true purpose of Christian marriage. Virginia Law Review 35 (5): 570–579.
Cretney, S.M., and J.M. Masson. 1997. Principles of family law, 6th ed. London: Sweet and Maxwell.
Doyle, Suzanne. 2010. The notion of consent to sexual activity for persons with mental disabilities”. Liverpool Law Review 31 (2): 111–135.
Edin, Kathryn, and Maria J. Kefalas. 2011. Promises I can keep: Why poor women put motherhood before marriage. Berkeley: University of California Press.
Finlay, Henry A. 1980. Sexual identity and the law of nullity. Australian Law Journal 54 (3): 115–126.
Freeman, Elizabeth. 2002. The wedding complex: Forms of belonging in modern American culture. Durham, NC: Duke University Press.
Gaffney-Rhys, Ruth. 2006. Sheffield city council v E and another—capacity to marry and the rights and responsibilities of married couples. Child and Family Law Quarterly 18 (1): 139–150.
Geller, Jaclyn. 2001. Here comes the bride: Women, weddings and the marriage mystique. New York: Four Walls Eight Windows.
Giddens, Anthony. 1992. The transformation of intimacy: Sexuality, love and eroticism in modern societies. Stanford: Stanford University Press.
Giroux, Henry A. 2010. Zombie politics and other late modern monstrosities in the age of disposability. Policy Futures in Education 8 (1): 1–7.
Goda, Paul J. 1967. The historical evolution of the concepts of void and voidable marriages. Journal of Family Law 7: 297–308.
Gordon, Charles. 1986. New immigration legislation: The immigration reform and control act of 1986, the marriage fraud act, the state department efficiency bill. Georgetown Immigration Law Journal 1 (3): 641–665.
Grenfell, Laura. 2003. Making sex: Law’s narratives of sex, gender and identity. Legal Studies 23: 66–103.
Grunlan, Stephen A. 1999. Marriage and the family, 2nd ed. Grand Rapids: Zondervan.
Hall, J.C. 1971. The Nullity of Marriage Act 1971. The Cambridge Law Journal 29 (2): 208–210.
Hambly, David, and J. Neville Turner. 1971. Cases and materials on Australian family law. Sydney: The Law Book Company Ltd.
Hasson, Ezra. 2010. ‘I can’t’: Capacity to marry and the question of sex. Liverpool Law Review 31 (2): 95–110.
Hasson, Ezra. 2009. Capacity to marry: Law, medicine and conceptions of insanity. Social History of Medicine 23 (1): 1–20.
Harder, Lois. 2007. Rights of love: The state and intimate relationships in Canada and the United States. Social Politics 14 (2): 155–181.
Harder, Lois. 2009. The state and friendships of the nation: The case of non-conjugal relationships in the United States and Canada. Signs 34 (3): 633–658.
Herdt, G., and R. Kertzner. 2006. I do, but I can’t: The impact of marriage denial on the mental health and sexual citizenship of lesbians and gay men in the United States. Sexuality Research and Social Policy 3 (1): 33–49.
Hertogh, Marc. 2009. What’s in a handshake? Legal equality and legal consciousness in the Netherlands. Social and Legal Studies 18 (2): 221–240.
Hindess, Barry. 2007. The past is another culture. International Political Sociology 1 (4): 325–338.
Holmes, Mary. 2010. Intimacy, distance relationships and emotional care. Rechereches Sociologiques et Anthropologiques 41 (1): 105.
How to Kill a Zombie: Ten best ways to kill a zombie. 2009. http://voices.yahoo.com/how-kill-zombie-ten-best-ways-kill-zombie-4740282.html Accessed 12 June 2012.
Ingraham, Chrys. 1999. White weddings: Romancing heterosexuality in popular culture. New York: Routledge.
Knight, Robert H. 1997. How domestic partnerships and ‘gay marriage’ threaten the family. In Same-sex marriage: The moral and legal debate, ed. Robert M. Baird, and Stuart E. Rosenbaum, 108–121. Amherst, NY: Prometheus Books.
Koball, H.L., E. Moiduddin, J. Henderson, B. Goesling, and M. Besculides. 2010. What do we know about the link between marriage and health? Journal of Family Issues 31 (8): 1019–1040.
Leonard, Suzanne. 2006. Marriage envy. Women’s Studies Quarterly 34 (3): 43–64.
Marsh, Victor (ed.). 2011. Speak now: Australian perspectives on same-sex marriage. Melbourne: Clouds of Magellan.
Masson, Judith, Rebecca Bailey-Harris, Rebecca Probert, and Stephen Michael Cretney. 2008. Principles of family law. London: Sweet & Maxwell.
Montemurro, Beth. 2006. Something old, something bold. New Brunswick, NJ: Rutgers University Press.
Morgan, Wayne. 2011. A brief history of relationship law reform in Australia. In Speak now: Australian perspectives on same-sex marriage, ed. Victor Marsh, 143–150. Melbourne: Clouds of Magellan.
Moskowitz, D.A., G. Rieger, and M.E. Rolloff. 2010. Heterosexual attitudes toward same-sex marriage. Journal of Homosexuality 57 (2): 325–336.
Oldham, J. Thomas. 2000. Lessons from Jerry Hall v. Mick Jagger regarding US regulation of heterosexual cohabitants or, can’t get no satisfaction. Notre Dame Law Review 76 (5): 1409–1434.
Otlowski, Margaret. 1990. The legal status of a sexually reassigned transsexual: R v. Harris and McGuiness and beyond. Australian Law Journal 64 (1–2): 67–74.
Otnes, Celie C., and Elizabeth H. Pleck. 2003. Cinderella dreams: The allure of the lavish wedding. Berkeley: University of California Press.
Parker, Andrew, and Eve Kosofsky, Sedgwick (eds). 1995. Introduction: performativity and performance. In Performativity and performance, 1–18. New York and London: Routledge.
Passingham, Bernard, and Caroline Harmer. 1985. Law and practice in matrimonial causes, 4th ed. London: Butterworths.
Pateman, Carole. 1980. Women and consent. Political Theory 8 (2): 149–168.
Phillips, Anne, and Moira Dustin. 2004. UK initiatives on forced marriage: Regulation, dialogue and exit. Political Studies 52 (3): 531–551.
Polikoff, Nancy D. 2008. Beyond (straight and gay) marriage: Valuing all families under the law. Boston: Beacon Press.
Preves, S. 2000. Negotiating the constraints of gender binarism: Intersexuals’ challenge to gender categorization. Current Sociology 48 (3): 27–50.
Probert, Rebecca. 2002. When are we married? Void, non-existent and presumed marriages. Legal Studies 22 (3): 398–419.
Probert, Rebecca. 2005. How would Corbett v Corbett be decided today? Family Law 35: 382–385.
Riggs, Damien. 2011. The racial politics of marriage claims. In Speak now: Australian perspectives on same-sex marriage, ed. Victor Marsh, 191–204. Melbourne: Clouds of Magellan.
Rimmerman, Craig A., and C. Wilcox (eds.). 2007. The politics of same-sex marriage. Chicago and London: University of Chicago Press.
Roe, Tony. 2007. Just (not) married. Solicitors Journal 151 (6): 186–187.
Roseneil, Sasha, Isabel Crowhurst, Tone Hellesund, Ana Cristina Santos, and Mariya Stoilova. 2012. Remaking intimate citizenship in multicultural Europe: experiences outside the conventional family. In Remaking Citizenship in Multicultural Europe, ed. B. Halsaa, S. Roseneil, and S. Sümer, 41–69. Basingstoke: Palgrave Macmillan.
Rossi, Leena-Maija. 2011. ‘Happy’ and ‘unhappy’ performatives: Images and norms of heterosexuality. Australian Feminist Studies (Special issue on heterosexuality) 26 (67): 9–23.
Sandland, Ralph. 2003. Crossing and not crossing: Gender, sexuality and melancholy in the European court of human rights. Feminist Legal Studies 11 (2): 191–209.
Sandland, Ralph. 2009. Running to stand still. Social and Legal Studies 18: 253–258.
Schäfer, L. 2008. Marrying an in-law? The future of prohibited degrees of affinity and consanguinity in English law. Child and Family Law Quarterly 20 (2): 219–229.
Searle, John. 1989. How performatives work. Linguistics and Philosophy 12 (5): 535–558.
Sharpe, A.N. 2002. Transgender jurisprudence: Dysphoric bodies of law. London: Cavendish.
Sharpe, A. 2009. A return to the ‘truth’ of the past. Social and Legal Studies 18 (2): 259–263.
Sharpe, A. 2012. Transgender marriage and the legal obligation to disclose gender history. Modern Law Review 75 (1): 33–53.
Smart, Carol. 2007. Personal life: New directions in sociological thinking. Cambridge: Polity.
Smart, Carol. 2009. Family secrets: Law and understandings of openness in everyday relationships. Journal of Social Policy 38 (4): 551–567.
Stychin, Carl. 2006. Family friendly? Rights, responsibilities and relationship recognition. In Feminist perspectives on family law, ed. Alison Diduck and Katherin O’Donovan, 21–37. Routledge-Cavendish: Abingdon.
Tucker, Joe A. 1991. Assimilation to the United States: A study of the adjustment of status and the immigration marriage fraud statutes. Immigration and Nationality Law Review 13: 26–106.
Turner, S.S. 1999. Intersex identities: Locating new intersections of sex and gender. Gender & Society 13 (4): 457–479.
Acknowledgments
For discussing earlier versions of this article and sharing their many insights, I thank Tova Rosengarten, Claire Lace, and members of the Australian Women’s & Gender Studies Association.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Brook, H. Zombie Law: Conjugality, Annulment, and the (Married) Living Dead. Fem Leg Stud 22, 49–66 (2014). https://doi.org/10.1007/s10691-013-9246-9
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10691-013-9246-9