SAME SEX MARRIAGE - Proposed changes to the law23rd Aug 2012

by on 23rd Aug 2012


Emma 2With the Scottish Parliament announcing that Scotland could become the first country in the UK to introduce same sex (gay) marriage, this comes hot on the heels of a recent consultation by the English Government on whether same sex couples should be allowed to enjoy a civil marriage ceremony on exactly the same basis as opposite sex couples. New law in England could come into force by 2015.

At the moment, same sex couples in England, Wales and Scotland can all enter into civil partnerships to confirm their commitment to each other.  Therefore, what does “gay marriage” actually mean and what difference would it make?

The procedure for a same sex couple entering into a civil partnership is not exactly the same as an opposite sex couple entering into a civil marriage.  The Government’s proposed change to the law is intended to recognise the commitment between a same sex couple in exactly the same way as for an opposite sex couple.  Therefore regardless of sexual orientation, a couple might be able to get married with exactly the same process and civil ceremony.  However, the law is not intended to change how religious organisations define and solemnise religious marriages. Therefore, couples will have exactly the same rights to marry at a Register Office or other licensed place for a civil marriage ceremony, but this will not influence what can happen in a church or other place of worship.

The Living Together 2012 report conducted for the gay rights organisation Stonewall found that 71% of those people polled supported extending Civil Marriage ceremonies to include same sex couples. Resolution, the leading national family lawyers’ organisation in England and Wales, believes that it is discriminatory that couples, regardless of their gender, can not enjoy the same Civil Marriage ceremony.  However, there has also been well publicised opposition to the idea of same sex marriage by some leading faith leaders.

Without same sex marriage in England and Wales, there would also continue to be inconsistencies in cross-border recognition of same sex marriages, which may encourage “marriage tourism”. For example, if Scotland introduce same sex marriages and England and Wales do not, this could create a peculiar situation that a same sex couple get married in Scotland, but their marriage might not be recognised with the same legal rights and protection just a few miles over the border in England.

Finally, there are currently important differences between the law for a divorce between an opposite sex couple and the dissolution of a Civil Partnership between a same sex couple. In particular, an opposite sex couple can divorce for reason of “adultery”, but a same sex couple cannot dissolve their Civil Partnership for this reason. This is because “adultery” is defined as sexual intercourse between a man and a woman and so does not include sexual activity between two people of the same sex. Therefore, for there to be true equality between same sex and opposite sex couples, either the legal definition for “adultery” needs to be changed or, a better approach (as recommended by Resolution) would be to introduce “no-fault divorce” and do away with ”adultery” as a legal basis for bringing a marriage to an end.

For specific advice or further information in relation to all family issues, whether between same sex or opposite sex couples, contact a member of our Family Law team.