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Same Sex Marriage – essential update

Date:12 MAR 2014

Hands up who is looking forward to getting their heads around all of the upcoming changes to family law? As was clear from the President's 10th View, there are a lot of changes coming, and we are rapidly approaching the date for formal implementation.

This is the first of a series of articles designed to help family lawyers get up to speed with the reforms and other legislation by summarising the changes to the law and how they will affect day-to-day practice. Look out for further articles on: The single Family Court, the Children and Families Bill, the Revised PLO, the Child Arrangements Programme, the new Bundles direction and MIAMs.

In a nutshell:

Same sex marriages are lawful.


Generally 13 March 2014 (although some parts of the Act have come into force already, largely for the purpose of making subordinate legislation, and some will come into force 3 June 2014) (see The Marriage (Same Sex Couples) Act 2013 (Commencement No 1 Order 2013 and The Marriage (Same Sex Couples) Act 2013 (Commencement No 2 and Transitional Provision) Order 2014). The first same sex marriages can take place on 29 March 2014.

The Statutes and Statutory Instruments:

Marriage (Same Sex Couples) Act 2013

The Marriage (Same Sex Couples) Act 2013 (Commencement No. 1) Order 2013

The Marriage (Same Sex Couples) Act 2013 (Commencement No. 2 and Transitional Provision) Order 2014

Marriage (Same Sex Couples) Act 2013 (Consequential Provisions) Order 2014

Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014

The Family Procedure (Amendment) Rules 2014

The Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014

The Marriage of Same Sex Couples (Registration of Shared Buildings) Regulations 2014

Summary of the changes:

How is same sex marriage going to change what family lawyers deal with on a day-to-day basis? Answer: it isn't going to change much - for a while at least. Not counting pre-nups, family lawyers tend to get involved at the end of a marriage, so many of the changes made by the Marriage (Same Sex Couples) Act 2013and accompanying SIs won't really be relevant to family lawyers until same sex couples have got married and then decide, sadly, that they've had enough.

As you can imagine there are a huge number of provisions about a wide range of topics (for example pensions, benefits, registration of buildings, etc) but the main ones of interest to family lawyers are:

(1) Civil partners will be able to convert their civil partnership into a marriage (s 9). But, there is a hitch, as so far no regulations have been made to allow couples to do this. So, for the moment civil partners will have to remain civil partners (unless they dissolve their civil partnership and then get married - but how are you going to draft your dissolution petition to prove the civil partnership has broken down irretrievably without fibbing?). When the regulations do come into force the civil partnership will end on the day of the conversion to a marriage and the resulting marriage will be treated as having subsisted since the date the civil partnership was formed (s 9(6)).

(2) If your client wants to tick the adultery box on their divorce petition they can only do so if the respondent committed adultery with a member of the opposite sex. Same-sex adultery doesn't count (Sch 4, para 3, which inserts a new subsection (6) into MCA 1973, s 1).

(3) If your client in a same-sex marriage wants an annulment, they can't use non-consummation (Sch 4, para 4 which inserts a new subsection (2) into MCA 1973, s 12).

(4) A client can't use the fact that the parties were not respectively female and male as a basis for an annulment anymore (Sch 7, para 26, which deletes (c) from MCA 1973, s 11).

(5) Jurisdiction - a new Schedule A1 is inserted into DMPA 1973 which is essentially the same as the jurisdiction provisions for civil partnership. Brussels IIA (the Council Regulation) does not apply to same-sex marriages and so there are now new regulations for same-sex marriages - the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014 to make corresponding provision for same-sex marriages. Form D8 (the petition) will need to be amended at the jurisdiction section to make reference to these new regulations - the amended forms haven't been released yet.

(6) FPR 2010 Part 7 and Part 31 have been amended (The Family Procedure (Amendment) Rules 2014). These are the parts of the FPR that deal with applying for a divorce and registration of orders under the Council Regulation, the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 and under the Hague Convention 1996 respectively. The amendments are minor and deal with changes of terminology and adding references in to the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014.

(7) Also of interest may be the amendments to the HFEA 2008 (see Sch 7, paras 37 - 41) and the provisions relating to gender recognition (see Sch 5).

To do:

(1) Keep an eye out for the new amended forms.

(2) Get ready to read up on the conversion regulations when they come out, just in case some of your civil partner clients want to convert their partnership into a marriage.

Quite a nice short summary for same sex marriage, we have an inkling the rest of the articles won't be quite so brief!

In your 2014 edition of The Family Court Practice, you will find everything you need to know about the implementation of the single Family Court and the single County Court, along with all the latest amendments to the Family Procedure Rules 2010, including the new Part 37 and Practice Direction regarding Contempt of Court and the new rules in respect of MIAMS. The 2014 Red Book will also include the new Public Law Outline, the Child Arrangements Programme and the latest legislation concerning same-sex marriages, forced marriage and domestic violence.