This is an Act to make provision for same sex couples in England and Wales and about gender change for married persons and civil partners. It does not:
- Change the law relating to marriage for couples of the opposite sex;
- Abolish civil partnership or repeal the Civil Partnership Act 2004;
- Extend civil partnership to couples of the opposite sex.
It will be accompanied by a set of regulations (statutory instruments) which will bring the new Act into force and provide the procedural framework for same sex marriage, but these have not yet been made. The government has indicated that the first same sex marriages are not likely to take place until next year. In this article the key features of the new Act are highlighted and explained. It remains to be seen exactly how they will work in practice.
1. It makes marriage between same sex couples lawful, and equivalent to a marriage between a man and a woman.
In general terms the law of England and Wales will apply in the same way to a marriage which has taken place between same sex couples as to a marriage between opposite sex couples (s.11(1)). The term husband will include a man married to another man, and the term wife will include a woman married to another woman (Sch. 3).
There are some express exceptions to this. For example;
(i) Married persons of the same sex will not be able to divorce on grounds of adultery, or to have their marriage annulled on grounds of non-consummation (Sch. 4).
(ii) Equality has not been implemented in all respects in relation to pensions.
There is also general provision in Schedule 4 Part 7 which permits the government to enact future provisions limiting the equivalence of all marriages.
The Secretary of State is required to carry out a review relating to occupational pension schemes and in particular in relation to survivor benefits, the outcome of the review must be published by 1 July 2014.
2. It allows civil partners to convert their civil partnership to a marriage.
A currently existing civil partnership does not automatically become a marriage when the new Act comes into force, but the civil partners may choose to convert it (s.9). For the time being, at least, we will have a system where same sex couples can marry or civilly partner, but opposite sex couples can only marry, and existing civil partners can choose not to marry.
However the new Act also places an obligation on the Secretary of State to review the operation and future of the Civil Partnership Act 2004 ‘as soon as practicable' and following a full public consultation (s.15). There is no deadline for this, but the future of civil partnerships and the question of whether they will be extended to opposite sex couples is still hanging in the balance.
When a civil partnership is converted into a marriage, the civil partnership will come to an end and the marriage will be treated as though it had existed from the date of the civil partnership (s.9(6)).
The regulations which will provide the procedure for converting a civil partnership into a marriage have not yet been made. What is clear from the Act, however, is that the procedure will provide for conversion of civil partnerships celebrated in England and Wales (or at the British Consulate / between British armed forces personnel abroad). It does not provide a mechanism for civil partnerships celebrated according to the laws of other countries to be converted into a marriage. Those civil partnerships will still be recognised as civil partnerships under the CP Act 2004.
3. It allows couples of the same sex to have a religious marriage ceremony.
The Civil Partnership Act provides that no religious service is to be used at the signing of a civil partnership document. This remained the case even after the regulations came into force permitting civil partnerships to take place on religious premises, although the rules were relaxed to allow religious content in the introduction to, interval or conclusion of the civil partnership formation. It remains the case that the civil partnership formation itself must not be religious in nature and there must not be a religious service taking place at the moment when the registrar is officiating at the formation.
The Marriage (Same Sex Couples) Act permits;
- The marriage of a same sex couple in any appropriately registered building according to such form and ceremony as the persons to be married see fit to adopt where, the relevant governing authority of the building has opted-in (new s.26A Marriage Act 1949).
- The marriage of a same sex couple according to Quaker or Jewish custom where the relevant governing authority has opted in (new s.26B Marriage Act 1949).
- Marriage in armed forces chapels (new s.70A Marriage Act 1949).
This does not include marrying according to the rites of the Church of England.
There is no compulsion on any person to conduct a same sex marriage according to religious rites (new s.25A Marriage Act 1949).
The Secretary of State is obliged to review the question of whether marriages according to the customs of other belief organisations should be permitted, and must report by January 2015.
4. Same sex marriage is still not lawful in Scotland and Northern Ireland (Sch 2 Part 2).
In Northern Ireland a same sex marriage is to be treated as a civil partnership. In relation to Scotland, the Act anticipates that same sex marriage may become lawful in Scotland where it is currently under debate. In the meantime, the door is left open for the Secretary of State to specify that a marriage will be treated as a civil partnership in Scotland whilst ever same sex marriage remains unlawful in Scotland.
If the marriage is deemed a civil partnership in Northern Ireland or Scotland, and is then dissolved, this will also bring the marriage to an end in England and Wales.
5. Marriage abroad
Under the Civil Partnership Act 2004, recognisable same sex marriages entered into in other countries, according to that country's laws, are treated as civil partnerships in England and Wales.
There is, however, also provision in the new Act for same sex marriages contracted under foreign law to be recognised as marriages in England and Wales. This applies to marriages entered into in the future as well as marriages currently subsisting.
No provision is made for civil partnerships entered into according to foreign laws to be converted into a same sex marriage.
6. Jurisdiction to divorce same sex couples
For EC countries, the jurisdiction for a court to hear divorce proceedings is governed by EC Regulation 2201/2003. There is no cross-border recognition of either civil partnerships or same sex marriages. This means that the jurisdiction to divorce or dissolve a same sex marriage or civil partnership doesn't fall within the EC Regulations. Not all EC Countries provide a mechanism for the dissolution of civil partnerships or divorce of same sex marriages. This can leave some couples who are no longer habitually resident in the country where they entered into their marriage or civil partnership without a clear route to divorce or dissolution.
In practice, in relation to civil partnerships, the government adopted the same criteria as the EC Regulation 2201/2003 for determining whether the courts of England and Wales have jurisdiction to hear an application for dissolution. There are also bolt on provisions to allow dissolution here where the civil partnership was registered here, one of the parties is domiciled here but the couple do not reside here.
The Marriage (Same Sex Couples) Act anticipates implementing the same scheme in relation to same sex marriages, effectively adopting the criteria contained in EC Regulation 2201/ 2003 and also permitting same sex couples who marry here to divorce here where they don't fall within that scheme.
When the new Act comes into force it will not affect private legal instruments made before that date such as wills and trusts (Schedule 4). This means that when same sex marriages take place in the future, or civil partnerships are converted to marriage, wills or trusts currently referring to ‘marriages' or ‘spouses' will not be taken to include the spouse in a same sex marriage. Families will need to take steps to amend their will or trust instruments where they intend to include spouses of same sex marriages.
References to marriage or spouse in a will or trust deed executed after the date when section 11 of the Marriage (Same Sex Couples) Act comes into force (the ‘equivalency provision'), will include same sex marriages and spouses.
8. Co-habiting couples;
Where legislation refers to a couple who are not married but are living together as a married couple, this will include same sex couples (Sch. 3) who may be treated as living together as a married couple.
There is also a body of legislations following the Civil Partnership Act which refers to couples living together as civil partners.
In some circumstances the provisions are different depending on whether a couple is living together as though they were married or whether they are living together as though they were civilly partnered. Schedule 3 specifically anticipates this and provides that where this is the case the same sex couple will be treated as though they are living together as if civil partners rather than living together as if married.
9. Presumption of parentage;
There is a legal presumption that a child born to a married woman is the child of her husband, and he will be the legal father unless this is displaced by a declaration or other statutory provision.
The Human Fertilisation and Embryology Act 2008 extended the presumption so that where a child is born to a woman in a civil partnership, and the child was conceived via assisted conception during the civil partnership, the mother's civil partner will be the legal parent of the child.
The Marriage (Same Sex Couples) Act does not expressly extend the presumption of parentage. It provides that where a child is born to a woman during her marriage to another woman, the presumption is of no relevance to the question of who the child's parents are.
It may be the case that the HFE Act 2008 will be amended to extend the presumption of parentage to women in a same sex marriage, but as it stands presently only women in a civil partnership have the benefit of this legal presumption.
10. Change in Gender
The ability of two persons of the same sex to marry is of particular importance to transgendered people. This is because the position until the new Act comes into force is that where a person in a marriage is issued with an Interim Gender Recognition Certificate it has the effect of making the marriage voidable, and the person can't be issued with a full Gender Recognition Certificate until the marriage has been annulled. In other words, a happily married couple have to divorce in order for one of them to be fully recognised as having changed gender.
Similarly, where one of a couple in a civil partnership is issued with an Interim Gender Recognition certificate this makes the civil partnership voidable, and a full gender recognition certificate can't be issued until the civil partnership is annulled.
In some cases these provisions have prevented people who have changed gender from taking steps to have their new gender formally recognised because they can only achieve this via divorce or dissolution of their relationship.
Schedule 5 of the new Act makes provision for the change of gender of married persons or civil partners.
The new Act provides, broadly, that where an interim recognition certificate has been issued to a married person and their spouse consents to the marriage continuing after the issue of a full gender recognition certificate, the Gender Recognition Panel must issue a full gender recognition certificate.
In relation to civil partners, if an interim gender recognition certificate has been issued, and the civil partnership has been converted into a marriage and the person's spouse consents to the marriage continuing after the issue of a full gender certificate, again, the Gender Recognition Panel must issue a full gender recognition certificate.
The Act also specifically provides for the continuation of foreign marriages in particular circumstances after a change in gender.
Marisa Allman is Barrister, Mediator (FMA) and Collaborative Lawyer at Zenith Chambers
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.