Last week the government formally announced that it is considering reforming the law to enable same-sex couples to get married. It has opened a consultation seeking the views of the public about how to provide equal access to marriage: you can find it here , and it is open until 12 June 2012. It makes interesting reading, but in CFLP’s view it is as interesting for what it will not be considering, as it is for the proposed direction of change.

Currently the only option available to same-sex couples who wish to formalise their relationships in legal terms is to enter into a civil partnership. It’s pretty much the same as marriage in all but name, but the government now realises that name is important and says,

“We recognise that the personal commitment made by same-sex couples when they enter into a civil partnership is no different to the commitment made by opposite-sex couples when they enter into a marriage. We do not think that the ban on same-sex couples getting married should continue. Put simply, it’s not right that a couple who love each other and want to formalise a commitment to each other should be denied the right to marry.”

Hear, hear. The consultation will not, however, be making any recommendations on the availability of religious services for the marriage of same-sex couples, nor will it be considering whether opposite-sex couples should be able to enter into a civil partnership should they so prefer. Interestingly, having made its position clear, the government still goes on to ask questions on these matters – see below at numbers 5 and 8. (Presumably, these questions are there to enable people to have a rant rather than for any more constructive purpose?)

The government obviously understands that marriage as a concept is hugely important to society as a whole, but it is also a divisive issue. Some gay couples want to get married; some are not bothered, and some actively do not want to wear that label. Exactly the same goes for heterosexual couples, many of whom feel that marriage is inappropriate in some way for their situation, and would much prefer to have access to civil partnerships to better reflect who they are. Many couples, whatever their sexual orientation, have no wish legally to regulate their partnerships. The other difficult factor in the consultation is the religious aspect: discrimination by religious bodies about who they will marry will not only be tolerated but legally required as these organisations will not be able to conduct same-sex marriages even if they want to. They will, however, still be able to host civil partnership registrations (this has been the case since 5 December 2011).

We wonder if the government’s focus on marriage may be an attempt to distract from other areas of family law and policy that urgently need a 21st century facelift. Take, for example, the government’s failure to implement the recommendations of the Law Commission for legal consequences on the breakdown of cohabiting relationships. With marriage at a historically low ebb, how relevant is the proposed change in the law to those from Generation Y who tend to cohabit and have their children without the comparative security of a statutory framework for sorting things out if they go wrong, whatever gender partner they choose? The terminology of stable, loving, legally regulated partnerships should obviously be consistent across all sexual and gender orientation, but there is an argument that it isn’t the big issue in family policy. The lack of safeguards for cohabiting couples, for those who find themselves economically disadvantaged by the failure of a non-married or non-civilly partnered relationship, causes poverty and can harm children’s life chances. See here for more on the Resolution campaign for protection for unmarried couples – they suffer from family breakdown too, but you don’t see them in the official statistics so easily.

Also, there is the problem of how the law requires that you get a divorce, should your marriage break down. Archaically, it is still necessary to prove that one spouse has been at fault before it is possible to get a divorce without a 2-year hiatus, and this poisonous state of affairs has naturally been carried through to affect the dissolution of civil partnerships too. Again, the government does not feel able to tackle this issue, which we know well can do huge damage to couples who wish to separate their affairs with a minimum of animosity. Why is it necessary in this day and age to prove that one party has done wrong before the law will accept your contention that your marriage has irretrievably broken down? The political will, it seems, is pro-marriage for everyone, but certainly not currently pro-dignified divorce for anyone.

Then there are the government’s proposals to remove legal aid for almost all family proceedings which we’ve discussed before, see here, and plans to charge for using the child support agency to get child maintenance, to name but two more things we wish the government would do differently in the field of the law as it applies to families.

The government says there is a practical advantage in the proposals for a specific sector of the community: removing the bar on same-sex couples being married will enable for the first time, one partner to change their legal gender without having to formally end their marriage. Equally, couples who are currently in a civil partnership would be able to convert their partnership into a marriage, rather than formally dissolving their civil partnership. We applaud this, and the government’s general desire to enshrine equality regardless of sexual orientation. However, the other issues will not go away – or be obscured by the smokescreen of ‘marriage for everyone!’ – and we would like to see them back on the political agenda sooner rather than later.

The questions are below. Please do get involved: it’s possible that your views could still shape policy. Here’s that link to the consultation again. We’ve told you what we really think – what about you?

Question 1: Do you agree or disagree with enabling all couples, regardless of their gender to have a civil marriage ceremony?

Question 2: Please explain the reasons for your answer. Please respond within 1,225 characters (approx. 200 words).

Question 3: If you identify as being lesbian, gay, bisexual or transsexual would you wish to have a civil marriage ceremony?

Question 4: If you represent a group of individuals who identify as being lesbian, gay, bisexual or transsexual would those you represent wish to have a civil marriage ceremony?

Question 5: The Government does not propose to open up religious marriage to same-sex couples. Do you agree or disagree with this proposal?

Question 6: Do you agree or disagree with keeping the option of civil partnerships once civil marriage is available to same-sex couples?

Question 7: If you identify as being lesbian, gay or bisexual and were considering making a legal commitment to your partner would you prefer to have a civil partnership or a civil marriage?

Question 8: The Government is not considering opening up civil partnerships to opposite-sex couples. Do you agree or disagree with this proposal?

Question 9: If you are in a civil partnership would you wish to take advantage of this policy and convert your civil partnership into a marriage?

Question 10: Do you agree or disagree that there should be a time limit on the ability to convert a civil partnership into a marriage?

Question 11: Do you agree or disagree that there should be the choice to have a civil ceremony on conversion of a civil partnership into a marriage?

Question 12: If you are a married transsexual person would you want to take advantage of this policy and remain in your marriage while obtaining a full Gender Recognition Certificate?

Question 13: If you are the spouse of a transsexual person, would you want to take advantage of this policy and remain in your marriage whilst your spouse obtained a full Gender Recognition Certificate?

Question 14. Do you have any comments on the assumptions or issues outlined in this chapter on consequential impacts? Please respond within 1,225 characters (approx 200 words).

Question 15: Are you aware of any costs or benefits that exist to either the public or private sector, or individuals that we have not accounted for in the impact assessment? Please respond within 1,225 characters (approx 200 words).

Question 16: Do you have any other comments on the proposals within this consultation? Please respond within 1,225 characters (approx 200 words).

 

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