Family Law

With the government launching a consultation today on how to introduce same-sex marriage into England and Wales, sidestepping the real question of whether it should be introduced at all, one of the very many cultural changes would be the new way of describing those who are married. Once the legislation is introduced and unless there will be any other statutory provision, it would of course be discriminatory to refer thereafter to husband and wife because this would relate to a sexual orientation. The term partner is only reluctantly used by some who cohabit, being especially confusing when one or both are also in professional partnerships. So what officially and unofficially should we call those who are married if "husband and wife" will be taboo?

What is the position elsewhere in the world? What can be learnt?

Most jurisdictions with same-sex marriages replace husband and wife with reference to spouses. So in marriage one takes a spouse, not either a husband or wife. Each married person is blandly a spouse to the other. Article 2 of the Argentine Civil Code replaces in legislation the expression "man and woman" with "couple". The Dutch Civil Code Book 1 makes only minor concession to gender, when a pregnant spouse is described as the "female spouse". The South African Civil Union Act states that reference to husband or wife in any legislation is "deemed" to include reference to a spouse. The Swedish Marriage Code indicates that a couple can be pronounced "husband and husband", "wife and wife" as well as "husband and wife". In New York, arguably the home of non-discriminatory rights based litigation, they have fully covered their options in the Marriage Equality Act 2011 by stating that "when necessary to implement the rights and responsibilities of spouses under the law, all gender specific language or terms shall be construed in a gender neutral manner in all sources of law". So the terms husband and wife which have been understood to mean a man and a woman over many centuries, indeed millennia, is now by law stripped entirely of any gender references or meaning.

One element of the consultation may well be to decide how married people should be described in the future. Will our country decide that hereafter references to husband and wife carry no gender associations or implications whatsoever?

Now off to buy a wedding anniversary card for my dearly beloved Spouse A from her Spouse B - one lesson of the past millennia is that we husbands are very brave indeed if we should ever suggest we are Spouse A!

I am very grateful for the research of Julia Schtulman, paralegal at The International Family Law Group LLP.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new forthcoming major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.