Family Law

Same-Sex Marriage and Civil Partnerships: the New Law

Mark Harper,

Family Law, £60, paperback, 571pp

Sadly, we must leave it to other social scientists to consider the different ways in which a couple may typically perceive their partnership and, indeed, how any pair may do so. But how many different sorts of domestic partnerships does our legal system recognise? If you count, for example, different-sex marriage as two, on the basis that the grounds of nullity differ between the genders together with such as the inevitable biological distinctions with regard to consummation, adultery and procreation, perhaps it is ten (Marriage 4, civil partnership 2, cohabitation 4).

In this book Harper and co ‘seek to examine the legal changes introduced by the [Civil Partnership Act] 2004 (CPA 2004) and the [Marriage (Same Sex Couples)] Act 2013...as well as to examine the law as it relates to cohabitants’ (1.19). Quite an ask and quite a task. They bully off with four chapters on the - recent only - history of the march from criminalisation to consortium, reminding us, for example, that only a year passed between:

1. the Local Government Act 2003’s repeal of the famous ‘clause’ 28 of the Local Government Act 1988; and
2. the CPA 2004.

This coverage, if a little uncritically right-on for some, is generous for a practitioners’ work. There is only time for brief mention of the 1957 Wolfenden Report which few would regret typing into a search engine; it is a moving mix of what, even today, can be seen as a brave idea before its time and some seriously funny stereotyping (‘among homosexuals will be found not only those possessing a high degree of intelligence but also the dullest oafs’ (para 36)). It also reminds us that homosexuals have not been the only mis-perceived group - Lady Stopford, one of the few women on the Committee, and a medical doctor and magistrate, is introduced as ‘the wife of the Vice-Chancellor of Manchester University’ and Wolfenden ruled that, for the sake of ‘the ladies’, homosexuals be referred to, like the biscuits, as ‘Huntleys’ and prostitutes as ‘Palmers’.

Before their time they may have been, but Sir John and his colleagues did not consider, and presumably could not envisage, the idea of homosexual couples in formal domestic partnership. The value of this book is that it lays waste to the misunderstanding, prevalent in public discussion, that weddings and registrations trigger legal regime(s) that differ absolutely from informal domesticity. As a preface to the texts of the 2004 and 2013 Acts (which constitute about half the book) we go painstakingly through the items on the coupledom agenda from start-up to death via procreation, parenting, immigration, ‘rights and responsibilities’ (what used to be called ‘consortium’ when there was only marriage) and dissolution. One wonders if a wholly-tabular approach would have made the asymmetries more immediately apparent as with the Government’s comparison of civil partnership and same-sex marriage (pp 95-99). Incidentally, those pages are useful ammunition when returning fire from those jungle guerrilla fighters who, unaware that the war has already been lost, are still claiming that same-sex marriage is unnecessary because it is the same as civil partnerships.

This is a hard-worked, successful, volume. An adviser normally knows what sort of partnership his client is already in and will have plenty of existing sources to tell him the relevant law if he does not already know it. This book will be of great use when advising a gay client whether to wed, register, or shack up in the first place. Roll on, pre-relationship work.

CHRIS BARTON

Professor of Family Law, Academic Door Tenant at Regent Chambers, and a Vice-President of the Family Mediators Association