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James Stewart: Marriage equality for same-sex couples is a "no brainer"

Date:8 FEB 2013

James StewartI, like many family lawyers, welcome the House of Commons' approval of same-sex marriage in England and Wales. 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, is discriminatory. This view appears to underpin the legislation, which has been introduced at a time when much of the western world is moving in favour of full marriage equality.

Even traditionally conservative countries such as Spain have had marriage equality for a number of years. The United States is a jurisdiction where successive administrations have been beholden to the religious right, but President Obama, outlining his administration's civil rights agenda on 21st January, said "our journey is not complete until our gay brothers and sisters are treated like everyone else under the law...for if we are truly created equal, then surely the love we commit to one another must be equal as well".

Marriage Equality

Generations to come may be baffled about why marriage equality has caused such controversy in this jurisdiction. From a legal and moral standpoint, marriage equality for same-sex couples is an absolute "no brainer". I mention all of this, as the issue is now receiving international publicity as a result of a number of developments including: 

  • On 7th January 2013, the Superior Court of Ontario declared that a UK civil partnership is a marriage under Canadian law. The Superior Court held that the distinction in UK law between civil partnerships and marriage "violates" human dignity.
  • The US Supreme Court willin Marchhear arguments for and against both the California gay marriage ban (Proposition 8) and Clinton's Defence of Marriage Act. Given President Obama's pro-equality inauguration statement, it appears that his administration is quietly confident that the Supreme Court will clear the remaining obstacles to marriage equality in the US.

The UK position - What's in a name?

The Civil Partnership Act 2004 allowed two people of the same sex to formally register their relationship. Since the first registrations took place in Northern Ireland, Scotland and England & Wales in December 2005, 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.

Whilst the Civil Partnership Act was welcomed by many, others saw it as an unhappy compromise, believing we should follow the example of Spain and many other jurisdictions where the definition of marriage was simply extended to cover same-sex couples. The name ‘civil partnership' was coined to distinguish the institution from marriage and to reduce opposition to the legislation on its passage through parliament. Although it accurately describes legal status, it is rarely used by gay couples to define their relationship - to many it will always be a marriage and civil partners happily introduce other halves as husbands and wives.

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 wouldn't notice the difference.

Civil partnership - not in church 

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) Bill will allow gay marriage, including by religious organisations which want to offer it, it is proposed that 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, my own view is that this legislation is a very considerable step forward towards full marriage equality.

Divorce with a difference?

Like marriage, civil partnership can only be brought to an end by court order or the death of one of the partners. Unfortunately, the Civil Partnership Act contains a number of outdated and much criticised aspects of our fault-based divorce system. Whilst the Government's marriage equality initiatives are welcomed by many, it is a pity that it has not devoted more time and energy to much needed reform of our fault-based divorce system. 

The Family Law Act 1996 allowed for no-fault divorce. That provision was repealed after opponents, including those claiming to be motivated by religious conviction, argued that it undermined the institution of marriage. Sadly, this particular handicap was inflicted on the same-sex community by the Civil Partnership Act, which replicated all legislation dealing with marriage.

The same objections to same-sex marriage equality here  and in the US, were used in the past to thwart women in their struggle for the vote, justify the denial of civil rights to a segment of Northern Ireland's population well into the 1960s and to justify prohibiting inter-racial marriage in the US until 1967. 

Whilst the Civil Partnership Act was a welcome step, but 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) Bill will serve to address an obvious injustice, in ensuring that gay and lesbian couples have full equality under the law.

James Stewart is a Partner in the Family Department of Manches LLP and has specific expertise in complex financial cases, which often have an international dimension. He was shortlisted for the Family Law Awards 2012 International Family Lawyer of the Year.