Equal marriage is coming

By 19 December 2012divorce, marriage, News
[Update: the first same-sex couples married validly under English law on 29 March 2014]

It is a rare event indeed in the office when all of us can be found applauding the current government’s policy or pronouncements, but we have greeted David Cameron’s announcement that gay marriage will become legal with a general “thumbs up”.

In a subsequent speech, however, the culture secretary Maria Miller announced that the Churches of England and Wales (being the Established Church) will be explicitly banned from performing same-sex marriage ceremonies. The legal ban may have the effect of protecting these churches from legal claims against parishes refusing to marry same-sex couples; it also avoids a conflict between the C of E’s Canon Law (which is part of English law), which states that marriage is between one man and one woman, and future secular statute law. However, in this rather bizarre move the government has completely fudged the religious issue, managing to upset opponents and supporters alike. To introduce the idea of same sex marriage in religious institutions and then legally bar the established church from conducting them (without consultation according to the churches) is nonsense. We therefore temper our applause.

Not everyone in the CofE or CofW is happy with the proposals. The Bishop of Leicester and the Archbishop of Wales, for example, have both complained about the lack of consultation. They have both expressed the view that they would rather the Church were left to decide for itself whether to offer weddings to same-sex couples, rather than the Government banning it from doing so. Currently, it looks like other religious organisations will be able to “opt-in” to performing weddings, but only as organisations, meaning that individual churches/synagogues/mosques/temples etc will not be able to make up their minds on a local and individual basis.

Naturally the press coverage of the plans has ranged from the hysterical and doom-laden to the effusive and supportive, with much in between. Our Simon was on BBC Radio Cambridge last week talking about it, and it is clearly a subject that gets people chatting. But brushing aside the journalistic hyperbole let’s have a closer look at the proposal and where it will leave civil partnerships and existing legislation.

Opposite-sex couples can opt for a religious or civil marriage ceremony. Currently, same-sex couples can contract a civil partnership. When enacted, the Civil Partnership Act 2004 prohibited civil partnership registrations from taking place on religious premises. However, the law was changed in December 2011, which enabled civil partnerships to be registered on religious premises where the organisation concerned permits it, and the premises have been approved for the purpose of registering civil partnerships. The extension of marriage to same-sex couples will allow them to be married in a religious ceremony, apart from within the Churches of England and Wales or other objecting religious organisations.

Civil Partnerships differ little from marriage – civil partners are entitled to the same property rights, the same exemptions from inheritance tax, social security and pension benefits as married couples. They also have the same ability to obtain parental responsibility for a partner’s children as well as reasonable maintenance, tenancy rights, insurance and next-of-kin rights in hospital and with doctors.

There are a few key differences. It may be of little relevance to most of us, but civil partners of male peers or knights do not receive a courtesy title which the wife of a peer or knight would be entitled. Consummation is a requirement of marriage but not of civil partnerships, and failure to consummate is grounds for annulment of a marriage but not a civil partnership. The Government has indicated that annulment on the ground of non-consummation will apply to same-sex marriage, although this is very rare for opposite-sex couples and there is no reason to think it might be more common for those of the same gender. There are some problems with the legal definition of consummation, the finer points of which we shall not alarm you with here.

If a civil partnership breaks down, it is not possible to petition for dissolution on the basis of one partner’s adultery, due to the specifics of the legal definition of adultery. If a same sex couple marry, then it stands to reason that this option must be available to them. The Government has somewhat fudged the problematic issue of how to define both adultery and consummation for same sex couples by saying it will be for the courts to work it out… we’re not sure how keen they’ll be to be dealing with contested adultery petitions, so we’re looking forward to seeing what solution reveals itself.

The proposals to extend marriage to gay couples are not mirrored by offering civil partnerships to opposite-gender couples. The Civil Partnerships Act will remain in force, but only for two partners of the same sex: so gay couples will find themselves with a choice of how to formalise their union, while straight couples have none. Some have argued that this amounts to discrimination against opposite-sex couples. It is a very contentious area!

To be clear, the proposed new legislation will cover only England and Wales. There are currently no plans for similar legislation in Northern Ireland. In Scotland, the laws relating to marriage and divorce are different to those in England, but there are already plans underway for legislation to allow same-sex marriage in Scotland, with a Bill being introduced to the Scottish parliament shortly.

The draft legislation for gay marriage is expected next year, and we will of course be keeping an eye out for it, and updating this blog with relevant information. In the meantime, if you would like information about civil partnerships, you can have a look at our factsheet or give Gail, Sue, Adam or Simon a call on 01223 443333.

 

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