You are on page 1of 13

Anyone who has attended a civil partnership ceremony, and seen how similar it is to a marriage ceremony, knows how

extraordinarily petty it is for the UK Government to say that a same-sex couple can have all the rights and responsibilities of marriage through an institution with a different name (civil partnership) but cannot have access to the word and institution of marriage. (Professor Robert Wintemute, Equal Love Campaign - Critically consider the case for and against legislation to extend the availability of civil marriage to same-sex couples. Introduction Professor Robert Wintemute describes the Government as being extraordinarily petty in their approach to civil partnership laws. 1 The primary issue that arises from this statement is whether the Government is able to provide compelling reasons why the availability of civil marriage should not be extended to same-sex couples and thus dispel the statement. It is also important to consider the other side of the issue; opening up civil partnerships to heterosexual couples. Reasons for and against this extension of the law will be discussed below.

Analysis of the current law The Civil Partnership Act 2004 (CPA) was enacted with the intention of creating a legal institution parallel and equal to marriage, and was not intended to be seen as second class. It was designed to redress perceived inequality of treatment of longterm monogamous same sex relationships, while at the same time demonstrating support for the long-established institution of marriage.2

Under the Matrimonial Causes Act 1973 a marriage shall be void where the parties are not respectively male and female.3 In juxtaposition, the CPA states at section 3(1)(a) that Two people are not eligible to register as civil partners of each other if they are not of the same sex. These Acts clearly show Parliaments intention to

separate, and through the latter affirm the separation of these unions. The reasons for this distinction are extensive, yet whether they are justified is up for discussion.

A recent example which clearly displays the differences between the two acts arose in Wilkinson v Kitzinger,4 where a gay marriage formed in Canada was not recognised as a marriage in the UK; instead the couple were afforded the status of civil partners which they believed violated their human rights. Their application to the European Court of Human Rights (ECtHR) to be declared as a married couple was refused. Sir Mark Potter states as reasoning for this: If marriage is, by longstanding definition and acceptance, a formal relationship between a man and a woman, primarily (although not exclusively) with the aim of producing and rearing childrenand if that is the institution contemplated and safeguarded by Article 12, then to accord a same-sex relationship the title and status of marriage would be to fly in the face of the Convention as well as to fail to recognise the physical reality.

This passage supports the consistent view of the ECtHR that there is no duty in the European Convention to allow same sex couples to marry. The role of the convention is to ensure that discrimination does not occur and their justification that same sex couples do not fall under the definition of family life is accepted, as is their argument that any discrimination was rectified through the CPA. This decision is continually supported by the ECtHR who have taken the stance that it is for each member state to regulate rules on this issue, provided steps are in place to prevent outright discrimination on the grounds of sexuality. The approach of the ECtHR on this matter will be discussed in greater detail later.

Whilst the reasoning for the decision in Wilkinson v Kitzinger is appropriate and justified there are grounds for criticism. Of particular interest is the statement of the respondent in this case which draws on historical analogies of the exclusion certain groups of people from marriage.6 She highlights the banning of marriage between persons of different races under the apartheid regime in South Africa and Nazi laws which banned mixed Jewish and Aryan marriages. This point may seem extreme, yet it is worthy of note. Race and religion, the rights which when restricted in this way caused outrage are protected rights under section 4 Equality Act 2010. Sexual orientation also appears on this list. It must be said that the CPA does provide relief from discrimination for homosexual couples and is therefore not contrary to this Act. Yet the point which should be made is whether it would have been seen as appropriate after the apartheid or the fall of the Nazis to grant those who had been restricted from marrying a right to a union with a lesser connotation than marriage. The answer to this hypothetical question is no. Why then is discrimination appropriate here? As Lucy Crompton has stated, Establishing civil partnership as a separate institution entailsthe lingering odour of homophobia.7 She goes on to say that the creation of a separate regime of civil partnerships sends out a clear signal that these relationships are valued less highly than heterosexual relationships.8 Consequently, when considering the decision in light of these arguments further justification of it may be required in order to dismiss further allegations of inequality.

To summarise, the current position of the law is that the present civil partnership legislation addresses the legal needs of same sex couples and the majority of law makers both at a national and European level feel that this is sufficient. However, the

importance of the CPA as a step towards same sex marriage should not be discredited. As Bamforth has stated it is a step that may logically lead to the inclusion of civil partners within the legal definition of marriage. 9 Whilst the Government has in the past stressed that there are no plans to extend civil partnerships to same sex marriage,10 more recently the Government has become willing to take into account public desire for a move towards equal civil marriage. This they have achieved through their commitment to publishing a consultation on the topic in March 2012, thus allowing legislative changes to be made before the end of this Parliament.11 This development is a considerable step forward for same sex couples wishing to marry.

What would be the effect of an extension to same sex marriage? Extending the law would have more effect on some areas of life than others. Whilst the rights of couples will remain the same, there is a fear that the traditional view of marriage as an institution will be weakened. Baroness Hale addresses this issue whilst dissenting in the case of M.12 No one has yet explained how failing to recognise the relationships of people whose sexual orientation means they are unable or strongly unwilling to marry is necessary for the purpose of protection of or encouragement of people who are quite capable of marrying if they wish to do so.

This statement highlights a critical issue in this argument whilst the Governments attempt to honour the sanctity of marriage is commendable, there is a significant lack of evidence proving that the extension of marriage to homosexual couples would damage the marital institution. It must be asked why Government believe that samesex marriage will weaken marriage overall. As Baroness Hale states, allowing gay marriage will not prevent heterosexual couples from marrying. If, as we believe,

marriage is important and valuable, it will not depend on the exclusion of others from registered partnerships for its survival.14 Rather, the overall popularity of marriage may well increase if it is to be open to all as the number of people who are able to marry will be greater.

On the other hand, the possibility of opening up civil partnerships to heterosexual couples may pose a more credible risk to the strength of marriage as the number of people marrying would most likely decrease (due to the majority of marriages being civil15). Although, it may be argued that even if marriage numbers decreased this would not necessarily weaken it as an institution. In fact, who is to say it would not strengthen it as only those who truly wished to commit to the traditional sense of marriage thereby showing that their union is about more than financial and practical benefits, would marry.16

Expanding further on this point, marriage is currently at its weakest. Divorce levels remain high and fewer people are getting married at all, choosing instead to co-habit. The Government paper on Supporting Family states in section 4, Strengthening Marriage that they believe that marriage provides a strong foundation for stable relationships17 and stability for the care of children.18 From this it can be alleged that in the Governments official opinion marriage is the best environment in which to raise a child. A same sex couple are able to have children through adoption19, surrogacy or insemination and are also able to both be registered as parents to that child.20 Hypothetically then, in the opinion of the Government, children raised by same sex parents who are, by law, unable to marry are denied the opportunity to be raised in the environment which is most beneficial to them. Enabling same sex

couples to marry would negate this issue as children would then be brought up in the environment most recommended by the Government. It is possible that the writers did not intend their views to be interpreted in this way. It is also entirely probable that their views are intended to extend to those couples who have entered into a civil partnership and are raising children in this unit. Yet civil partnerships are not referred to in this document. One would not be criticised for believing that the lack of a mention in a document dedicated to strengthening a family unit suggests that civil partnerships may not be seen as equal to marriage in all but name. Further, if the two institutions are seen as equal, it must be asked why emphasis is being given to strengthen one but not the other. On this basis, it seems fair to suggest that the two are not always equal and the only solution for this would be to introduce equal marriage for all couples regardless of sexual orientation. This would remove any doubts over whether a civil partnership unit is appropriate to raise a child and also remove any stigma that remains attached to such families. It is a sensible opinion that without addressing this issue marriage and civil partnership will remain unequal institutions.

Perhaps the most debated effect of same sex marriage revolves around its religious origins. Religious ideals will undoubtedly be brought into conflict as law makers attempt to balance religious freedom with the sanctity of a traditional marriage, and the idea that marriage is the centre for procreation. Currently, the CPA 2004 expressly prohibits the use of a religious service while the civil partnership registrar is officiating the signing of the partnership document,21 although it is possible for couples to have a religious service to celebrate or mark the formation of their civil partnership after its registration. However, the passing of The Equality Act 2010

seeks to alter this element of the CPA through section 202. This section amends the Act to allow registration of a civil partnership to take place on approved religious premises. Whilst this will be seen by many to be a positive step towards allowing religious marriage for same sex couples, it remains clear that s202 is not intended to replace the secular process of civil partnership registration.22 Indeed, the Government emphasises the need to ensure that there is a clear break between the civil and religious elements.23 This emphasis shows that although the Equality Act 2010 is a step forwards, it remains clear that a religious registration of a civil partnership is in no means akin to religious marriage.

On a wider note, it must be also considered whether there is even a demand within faith groups for such religious services. An estimation by the Government into potential demand used comparable evidence for religious marriages and estimated that as many as 1,593 couples may seek to use religious premises to register a civil partnership each year.24 Of the 7,169 couples who registered partnerships in 2008 this appears to be a relatively low number although it does reflect the percentage of heterosexual religious marriages that take place on an annual basis. This significant addition to civil partnership law provides a platform for same sex couples, particularly those of religious backgrounds to demonstrate to Government that a genuine need for an extension to allow religious same sex marriage exists.

Societys Outlook Marriage and civil partnership are often seen as synonymous the mistaken referral by many to gay marriage rather than civil partnership suggests that many either are not aware of the distinction, or merely do not care for it. If the reality of the matter is

that the general public find the distinction irrelevant then it must be asked whether it remains appropriate for the two to be kept separate, or whether the fact that the outlook of society has evolved suggests that the law should follow suit.

Marriage is culturally viewed as being a life changing event where two individuals become in the eyes of the law a joint body. The CPA was always intended to confer a similar change of status upon same sex couples. Baroness Scotland of Asthal made this clear during the Bills House of Lords Report Stage by saying that that forming a civil partnership involved like marriage a change of status; it was not just a contractual matter.25 In spite of this, many who enter into a civil partnership feel that despite its intention to create a marriage in all but name, it continues to lack the status which society affords to marriage. Supporting this is the claimant in Wilkinson v Kitzinger who said that she and her partner would feel downgraded by being labelled civil partners rather than a married couple, and that they would feel hurt, frustration, humiliation and outrage.26 In response to this, Sir Mark Potter states that such feelings are not shared by a substantial number of civil partners and thus were not sufficient to show that the discretion was unjustifiable.27 This response does little to acknowledge the real emotions of couples who do feel that their partnership lacks societal status. As Bamforth has since said, it is perhaps regrettable that Sir Mark did not attempt to consider the issue in more detail.28 It may be that the only way to solve this problem would be granting full marriage rights to all. Likewise, an extension to make civil partnerships available to all couples would probably increase the status it affords as it would no longer be seen as a secondary marriage, particularly as a number of heterosexuals would be likely to choose it as an alternative to traditional marriage. The traditional view of marriage, where the

husband is the dominant party is openly reviled in todays society and in the courts. Marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband. 29 This is now the viewpoint adopted by society yet many still view marriage as an androcentric institution and choose not to enter into it on this basis. The short period of time since the introduction of civil partnerships means there is no background of a subservient partner and it carries none of the negativity that some people associate with marriage. Thus, making both marriage and civil partnerships available to all regardless of sexual orientation would address numerous issues simultaneously.

It is difficult to judge exactly how far public support for same sex marriage extends. The equal love campaign provides a small scale example with its petition at last check30 having 2,233 signatures. Similarly, a petition entitled Legalise Gay Marriage on the official Government petition website31 reflects this with 3,660 signatories. Weighing these numbers against the population of the UK it is clear that these petitions do not provide an accurate representation of public support. A larger study in 2009 found that 61% of people polled supported gay marriage, 32 an 11% increase from a 2002 survey33. The results of these studies show that public support for gay marriage is growing. However in order to fully gage the support an extension in the law has a study which greater reflects the population as a whole must be carried out. Optimistically, this will occur with the Government consultation paper to be published in March 2012;34 the response to which will hopefully clarify the law and any remaining ambiguities on the subject.

International Perspective

Lord Penzance stated in Hyde that marriage is The voluntary union for life of one man to one woman to the exclusion of all others. 35 Much of this definition is no longer relevant in modern times: marriage is rarely seen as a life-long union, largely due to spiralling divorce rates and a longer life expectancy. Neither are all others necessarily excluded, not all couples are monogamous; even polygamous marriages from other jurisdictions may be recognised by the UK in certain circumstances. Why then, does Parliament insist on maintaining one aspect of this definition when the others have so openly changed? Law makers have taken the step to provide same sex couples with the opportunity to form a life-long union and should be praised for doing so before many other jurisdictions. Yet whilst the UK was relatively prompt in this change, they lag behind many other countries who have taken the further step to allow gay marriage such as Belgium, the Netherlands, Spain and Canada. Despite this, Herring suggests that by looking at those countries who have introduced full marriage rights for gay couples a pattern can be identified.36 Currently, the UK remains stuck at the penultimate step of this journey that is, an equivalent but different status to marriage being granted to same sex couples. From this information it seems probable that the UK may not be too far off taking the final step and allowing full homosexual marriage.

As mentioned above, the ECtHR declines the opportunity to regulate this issue throughout Europe and ensures member states continue to legislate independently at a national level in this area. In Mata Estevez v Spain37 the court held that Despite the growing tendency in a number of European states towards a legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the Contracting States, an area


in which they will enjoy a wide margin of appreciation. This abstract suggests that until common ground exists between at least a majority of European states the ECtHR will continue to avoid establishing a common rule. The unwillingness to introduce legislation follows a trend for the ECtHR who consistently declares itself slow to trespass on areas of social, political and religious controversy, where a wide variety of national and cultural traditions are in play and different political and legal choices have been made by the members of the Council of Europe.38 As a result of this, the exact implications of relevant convention rights regarding the distinction between marriage and civil partnership remain hard to discern.39

In order to gain an insight into what effect an extension of the law would have on the UK ministers should look to those countries that have chosen to allow same sex marriage. The Netherlands became the first country to allow gay marriage in 2001. In that year 2,400 single sex couples chose to marry.40 Although this number has since declined, it undeniably shows there is a demand for the service. Interestingly, Canada is the only country to allow non-residents access to gay marriage. In 2003, more than half of the same sex marriages that took place were for non-Canadian residents.41 This rather alarming statistic shows that there is a demand for similar services on an international scale as many have clearly made the decision to travel abroad to obtain a union which they are held back from in their home countries. It is also worth considering the French marriage-lite approach which in 1999 extended civil partnerships to all couples. The statistics which emerged from France in 2009 are proof that opposite sex couples desire a civil marriage: some 95% of those who took up the pacte civil de solidarite were heterosexual.42 This overwhelming uptake should not be overlooked. The relevance of this to same sex marriage is that it


clearly demonstrates that there is a market for equal partnership rights for all couples and thus any change in the law must reflect both options in order to work effectively. Thus, if the UK chooses to adopt gay marriage then in addition careful consideration must be given to extending civil partnerships to heterosexual couples. Conclusions Whilst there are many legitimate reasons are to why legislation should not be introduced to expand the current system, in the interest of society and social justice an extension would be favourable and agreeable to the majority. It will be interesting to see the results of the Government consultation on the matter later this year which will no doubt have a significant and hopefully positive impact on the law.

1 2 3 4 5 6 7 8

Professor Robert Wintemute, Equal Love Campaign - Wilkinson v Kitzinger [2006] EWHC 2022 per Sir Mark Potter at [50] S11(c) Matrimonial Causes Act 1973 Wilkinson v Kitzinger [2006] EWHC 2022 Wilkinson v Kitzinger [2006] EWHC 2022 at (2) As quoted in Wilkinson v Kitzinger [2006] EWHC 2022 per Sir Mark Potter at [9]

Civil Partnerships Bill 2004: The Illusion of Equality [2004] Fam Law 888 at [829] Civil Partnerships Bill 2004: The Illusion of Equality [2004] Fam Law 888 at [889] 9 The benefits of marriage in all but name? Samesex couples and the Civil Partnership Act 2004 Nicholas Bamforth

Civil Partnership: A framework for the legal recognition of samesex couples (DTI, Women and Equality Unit,

2003), paras 1.3, 2.62.8


response?view=Binary (Response to consultation official) at [1.17]

12 13 14

Secretary Of State For Work And Pensions V M [2006] UKHL 11 Secretary Of State For Work And Pensions V M [2006] UKHL 11, per Baroness Hale at [113] Response by religious organisation to The consultation on Civil Partnership Registration: analysis of the

responses Chapter 4 Marriage and Partnership (Scotland)

15 16

67% in 2009



17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40

Supporting Family 1998 at 4.3 Supporting Family 1998 at 4.8 Adoption and Children Act 2002 Human Fertilisation and Embryology Act s42 2008 S2(5) Civil Partnership Act 2004 Civil Partnerships on Religious Premises, a Consultation at [2.13] Civil Partnerships on Religious Premises, a Consultation at [3.25] Civil Partnerships on Religious Premises, a Consultation at [annex 1] Hansard, Lords Debates, cols 13611362 (24 June 2004); Wilkinson v Kitzinger [2006] EWHC 2022 extract from claimants statement Wilkinson v Kitzinger [2006] EWHC 2022 at [116]-[117] The benefits of marriage in all but name? Samesex couples and the Civil Partnership Act 2004, N. Bamforth R v R [1991] 3 WLR 767 per Lord Keith Last accessed 09/01/2012 Bennett (2009) ICM (2002) Responses to Civil Partnerships on Religious Premises, a Consultation at [1.17] Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, per Lord Penzance at 133 Family Law, J. Herring at page 75 (Application No 56501/00) (unreported) 10 May 2001 at [4] Wilkinson v Kitzinger [2006] EWHC 2022at [44] The benefits of marriage in all but name? Samesex couples and the Civil Partnership Act 2004, N. Bamforth

41 42