Posted: 28/03/2014
From this weekend same-sex couples will legally be allowed to marry for the first time in this jurisdiction. Registry offices across the country are reporting that they will be opening their doors for the first same-sex wedding ceremonies at 12:01 on 29 March.
Before the Marriage (Same-Sex Couples) Act 2013 a marriage could only be between a man and a woman. Same-sex couples have been able to enter into Civil Partnerships since 2005 but they were not allowed to marry. Sir Ian McKellen, a founding member of campaigning group Stonewall, in 2008 described the previous disparity as “an oddity … it is not equal and one day it will be put right”. Has it now been put right, and is equality for same-sex couples now here?
The formalisation of same-sex relationships was widely consulted upon before the passing of the Civil Partnership Act 2004 which for the first time allowed two people of the same sex to formally register their relationship. Various private members bills were withdrawn in the face of a government sponsored bill, the passage of which through Parliament was fraught with conflict. Attempts were made in the House of Lords to sabotage its passage, and legislators sought to strike a balance between providing all the benefits of marriage but not actually giving it the name.
The first civil partnership in the UK was entered into on 5 December 2005. Since the first registrations took place in Northern Ireland, Scotland and England and Wales, same-sex couples have been able to enjoy a range of benefits which were traditionally only available to married couples, such as employment, pension, insurance and (some) tax benefits, ability to change names, partnership, and the right to provision from the estate of a deceased partner under the Inheritance (Provision for Family and Dependants Act) 1975, and certain rights on intestacy. By enabling same-sex couples to form legally binding unions, the legislation has helped to end discrimination and promote equality for the gay community. But this is not the same as marriage and it did not provide equality.
The Civil Partnership Act was welcomed by many, while others saw it as an unhappy compromise, believing we should follow the example of many other jurisdictions where the definition of marriage was simply extended to cover same-sex couples.
Whilst it can be argued that civil partnerships, introduced by the Civil Partnership Act 2004, are marriages by another name, the distinction between the two institutions, and the inability of same-sex couples to marry, was discriminatory. This view underpinned the legislation, which was introduced at a time when much of the western world was moving in favour of full marriage equality. The Netherlands, South Africa, Canada and Belgium, among others, have allowed same-sex couples to marry for many years. Even traditionally conservative countries such as Spain, as well as certain US states, have had marriage equality.
In the same way that marriage is only open to heterosexual couples, civil partnership is only open to same-sex couples. However, legislators drafted the civil partnership laws to mirror the law on marriage so even if heterosexual couples were allowed to register a civil partnership, they were only limited differences. Civil partnership introduced, effectively, a desexualised form of marriage. Beyond the fact of its distinct terminology, the key differences between marriage and civil partnership are that consummation of the relationship is not needed (or rather it is not voidable for lack of consummation) and there are no adultery provisions for the dissolution (note, not “divorce”) of civil partnerships.
There is a widespread perception that same-sex unions are a threat to religion. In March 2010, Chris Bryant, a former Church of England chaplain, held the first civil partnership to take place in Parliament in the Members' Dining Room. Unlike other MPs, Bryant was not able to marry in the Chapel of the Palace of Westminster as civil partnerships cannot take place in religious premises.
Whilst The Marriage (Same Sex Couples) Act allows gay marriage, including by religious organisations which want to offer it, the Church of England and of Wales will be legally barred from marrying same-sex couples. Whilst many members of the Church of England would argue that this provision is in itself an unhappy compromise, it remains the Church’s decision whether to marry same-sex couples according to their rites, and there is no compulsion on them to do so. Canon Law would need to be amended through the General Synod, and subject to Parliamentary approval, to allow the Church of England to conduct same-sex marriages. This is highly unlikely to happen in the foreseeable future.
The Government has recognised that the availability of civil partnerships only for same-sex couples is problematic in that heterosexual couples are unable to enter into civil partnerships. The Act therefore provides a review of the operation and future of civil partnerships in England and Wales and the Government launched a consultation on this in January 2014. This consultation will close on 17 April 2014. Cohabiting couples of any sexuality need greater assistance from the legislature than simply widening access to civil partnerships.
The Marriage (Same-Sex Couples) Act 2013 provides that those who already have a Civil Partnership may convert it into a marriage; however the procedure for this has yet to be established. It is intended that this subsidiary legislation to allow for this to proceed will be in place by the end of 2014. Until then however, a further anomaly exists that those already in civil partnerships are unable to marry.
It is difficult to know how many couples will actually enter into same-sex marriages in the coming months given that many of those likely to be keenest to do so are already in civil partnerships and therefore unable to marry at present. Figures for Oxfordshire are that there are currently 45 same-sex couples registered to marry in the county from April to September. Westminster City Council has 52 same-sex marriages lined up, including four on 29 March. Whilst the numbers affected may not be vast, the importance to those couples who are able to marry will be life changing. Same-sex couples will have at long last achieved marriage equality under the law. As President Obama stated in his inauguration speech "for if we are truly created equal, then surely the love we commit to one another must be equal as well".
Says James Stewart, family law partner at Penningtons Manches LLP: "Whilst the Civil Partnership Act was a welcome step, it was clear that there was still some way to go in achieving true equality for same-sex couples in the UK. The Marriage (Same Sex Couples) Act will serve to address an obvious injustice, in ensuring that gay and lesbian couples have full equality under the law. My view is that the current legislation is a very considerable step forward towards full marriage equality."
29 March 2014 will go down as an historic date in the progress towards equality in this country.
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